Faculteit Rechtsgeleerdheid
Academiejaar 2014-2015
The impact of accession to the ECHR on the
autonomy of the EU legal order
Analysis of the Draft Accession Agreement
Masterproef van de opleiding
‘Master in de rechten’
Ingediend door
Alisa Vekeman
(studentennr.: 01004315)
Promotor: Prof. Inge Govaere
Commissaris: Liesbet Van den Broeck
ii
Faculteit Rechtsgeleerdheid
Academiejaar 2014-2015
The impact of accession to the ECHR on the
autonomy of the EU legal order
Analysis of the Draft Accession Agreement
Masterproef van de opleiding
‘Master in de rechten’
Ingediend door
Alisa Vekeman
(studentennr.: 01004315)
Promotor: Prof. Inge Govaere
Commissaris: Liesbet Van den Broeck
iii
iv
ACKNOWLEDGMENTS
As anyone from my close surroundings will confirm, the past year has been one of constant
focus. Notwithstanding the time and effort put into this dissertation, it is not just the end result
of one year’s hard work: five years of learning and evolving is what finally brought me here.
First of all I would like to express gratitude to prof. dr. Inge Govaere for her guidance and help,
also with matters not directly related to this master’s dissertation, and to dr. Liesbet Van den
Broeck for her helpful comments. They were always available to provide answers and directions
during the process of writing this text.
The next people in line are my parents, who give me the opportunity and support to do
everything I am passionate about, regardless of where it takes me. Special thanks to them and to
Marc, for believing in me and for taking the time to proofread draft versions of this paper. The
same applies to my sister, who was available to provide distraction when most needed.
Finally, gratitude is due to my friends: thank you for asking about the topic and progress of my
dissertation and for pretending to be interested in European law. Special thanks to Nuydt, for
reading and commenting on this paper. This acknowledgement also seems the appropriate place
to apologise for the (numerous) times I had to cancel plans to work on this paper. Yolo credits
will soon be recovered.
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SUMMARY (NL)
Volgens vaste rechtspraak van het Hof van Justitie, art. 6(2) VEU en Protocol Nr. 8 bij het VEU
kan de EU slechts toetreden tot het EVRM indien de autonomie van de EU gewaarborgd wordt.
Het Ontwerp Toetredingsakkoord van 2013 is er niet in geslaagd dit mogelijk te maken: het
werd door het Hof in Advies 2/13 onverenigbaar verklaard met het primair EU-recht. Deze
masterproef onderzoekt wat de impact van de toetreding tot het EVRM onder de voorwaarden
van het Ontwerp Toetredingsakkoord zou zijn op de autonomie van de Europese rechtsorde.
Om het Ontwerp Toetredingsakkoord te analyseren baseert deze tekst zich op het concept
autonomie zoals dit werd ontwikkeld in vaststaande rechtspraak van het Hof van Justitie. In het
externe optreden van de EU kan zich een impact voordoen op de autonomie van de Europese
rechtsorde in vier gevallen: wanneer de voorrang, eenheid en nuttige werking van het EU-recht
in het gedrang komt (1), wanneer de bestaande bevoegdheden van de EU worden gewijzigd (2),
wanneer de bevoegdheden van de instellingen van de EU en de lidstaten worden gewijzigd (3)
en wanneer een instelling buiten de EU het EU-recht op intern bindende wijze interpreteert (4).
Deze principes dienen als leidraad om te bepalen op welke punten de toetreding een bedreiging
vormt voor het autonome karakter van de EU.
Het Ontwerp Toetredingsakkoord introduceert twee nieuwe procedures in het EVRM systeem
om tegemoet te komen aan de specifieke aard van de EU: het co-respondent mechanisme en de
procedure voor tussentijdse raadpleging van het Hof van Justitie. Daarnaast bevat het een
waarborg voor de exclusieve bevoegdheid van het Hof van Justitie. Deze maatregelen zijn echter
onvoldoende gebleken om de autonomie van de EU te beschermen. Verder bevat het Ontwerp
Toetredingsakkoord geen oplossing voor negatieve gevolgen voor de autonomie die ontstaan
door: de bevoegdheid van het EHRM met betrekking tot het GBVB, Protocol 16 EVRM, het gebrek
aan coördinatie tussen art. 53 EVRM en art. 53 van het Handvest van de Grondrechten van de EU
en de potentiële aantasting van het principe van wederzijds vertrouwen. Deze masterproef
onderzoekt voor elk van deze aspecten waarom het Ontwerp Toetredingsakkoord er niet in
slaagt de autonomie van de Europese rechtsorde te beschermen. Vervolgens worden mogelijke
oplossingen besproken die de impact op de autonomie zouden kunnen verhelpen.
De analyse in deze masterproef legt de redenering van het Hof van Justitie in Advies 2/13 bloot
en toont begrip voor de constitutionele aanpak die in dit advies wordt aangehouden. Aan de
andere kant wordt ook het mensenrechtelijk perspectief in beschouwing genomen. De vraag rijst
of het in dit concrete geval niet wenselijk zou zijn een zekere impact op de autonomie van de EU
toe te laten om zo een betere bescherming van fundamentele rechten mogelijk te maken.
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TABLE OF CONTENTS
ACKNOWLEDGMENTS ........................................................................................................................................................ V
SUMMARY (NL)............................................................................................................................................................... VII
TABLE OF CONTENTS .................................................................................................................................................... VIII
ABBREVIATIONS ................................................................................................................................................................ XI
INTRODUCTION ................................................................................................................................................ 1
METHODOLOGY ..................................................................................................................................................................4
PURPOSE ..............................................................................................................................................................................4
PART I. AUTONOMY OF THE EU LEGAL ORDER: STANDING IN THE WAY OF ACCESSION TO
THE ECHR ............................................................................................................................................................ 5
INTRODUCTION: SETTING THE SCENE ............................................................................................................................5
I. Two households, both alike in dignity .........................................................................................................5
1. The EU and the ECHR ....................................................................................................................................5
2. The ECtHR and EU law..................................................................................................................................8
II. The concern to preserve the specific characteristics of the EU .................................................... 10
CHAPTER I: AUTONOMY OF THE EU LEGAL ORDER................................................................................................... 12
I. Autonomy as a constitutional principle ................................................................................................... 12
II. Autonomy and dispute settlement mechanisms under international law ............................... 15
CHAPTER II. CONSEQUENCES FOR ACCESSION TO THE ECHR................................................................................. 19
I. The primacy, unity and effectiveness of EU law must be ensured ................................................ 19
II. The existing competences of the EU should remain unaltered ..................................................... 21
III. Powers of the Member State and EU institutions should remain unaltered.......................... 22
1. The essential character of the powers cannot be affected.......................................................... 23
A. Accession and Article 267 TFEU....................................................................................................... 23
B. Essential characteristics of the CJEU .............................................................................................. 24
C. Jurisdiction of the ECtHR over the CFSP ....................................................................................... 26
2. The allocation of powers cannot be affected .................................................................................... 26
IV. The ECtHR cannot interpret EU law in an internally binding fashion ...................................... 27
V. Interim conclusion ........................................................................................................................................... 28
PART II. THE DRAFT ACCESSION AGREEMENT ................................................................................... 29
INTRODUCTION ................................................................................................................................................................ 29
CHAPTER I: PROPOSED SOLUTIONS ............................................................................................................................. 31
I. Co-respondent mechanism ............................................................................................................................ 31
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1. Necessity of a new procedure ................................................................................................................. 31
2. Situations to which the co-respondent mechanism would apply............................................ 33
A. The EU as co-respondent..................................................................................................................... 34
B. The Member State(s) as co-respondent(s) .................................................................................. 37
3. Assessment ..................................................................................................................................................... 38
A. The voluntary nature of the co-respondent mechanism ........................................................ 39
B. Plausibility that the conditions of the co-respondent mechanism are met .................... 40
C. The exception on joint responsibility ............................................................................................. 41
4. Interim conclusion ...................................................................................................................................... 42
II. Prior involvement of the CJEU in cases in which the EU is a co-respondent........................... 44
1. Necessity of a new procedure before the ECtHR ............................................................................ 44
2. Necessity of a procedure on the level of the EU .............................................................................. 47
3. Assessment ..................................................................................................................................................... 49
A. The scope of the assessment by the CJEU ..................................................................................... 50
B. The decision to start the prior involvement procedure ......................................................... 51
C. Non-binding nature of the assessment by the CJEU ................................................................. 53
4. Interim conclusion ...................................................................................................................................... 54
III. The DAA and inter-party cases ................................................................................................................. 55
1. The clash between Article 33 ECHR and Article 344 TFEU ........................................................ 55
2. Assessment ..................................................................................................................................................... 56
CHAPTER II: ISSUES THAT WERE NOT ADDRESSED ................................................................................................... 59
I. Common Foreign and Security Policy ....................................................................................................... 59
1. Competence of the CJEU ............................................................................................................................ 61
2. Discrepancy between the jurisdiction of the CJEU and of the ECtHR..................................... 62
II. Article 53 of the Charter and Article 53 ECHR ..................................................................................... 67
III. Principle of mutual trust.............................................................................................................................. 70
IV. Protocol No. 16 to the ECHR....................................................................................................................... 74
CONCLUDING OBSERVATIONS .................................................................................................................. 77
I. THE IMPACT OF ACCESSION TO THE ECHR ON THE AUTONOMY OF THE EU LEGAL ORDER ........................... 77
II. OPINION 2/13: TWO PERSPECTIVES ...................................................................................................................... 79
The constitutional perspective: autonomy preserved ........................................................................... 79
The human rights perspective: a missed opportunity? ......................................................................... 80
BIBLIOGRAPHY .............................................................................................................................................. 84
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ABBREVIATIONS
AFSJ
Area of Freedom Security and Justice
CDDH
Steering Committee for Human Rights
CFSP
Common Foreign and Security Policy
CJEU
Court of Justice of the European Union
DAA
Draft Accession Agreement
DAECPC
Draft Agreement on the European and Community Patents Court
Draft Explanatory Report
Explanatory Report to the DAA
EAW
European Arrest Warrant
ECHR
European Convention for the Protection of Human Rights and Fundamental
Freedoms
ECtHR
European Court of Human Rights
EEA
European Economic Area
EEC Treaty
Treaty establishing the European Economic Community
EFTA
European Free Trade Association
EU
European Union*
High Contracting Parties
The contracting parties to the ECHR
Member States
Member States of the EU
Protocol No. 16
Protocol No. 16 to the ECHR
Protocol No. 8 EU
Protocol No. 8 relating to Article 6(2) of the TEU
TEU
Treaty on the European Union
TFEU
Treaty on the Functioning of the European Union
The Charter
Charter of Fundamental Rights of the European Union
UNCLOS
United Nations Convention on the Law of the Sea
*When reference is made to ‘EU’, this also encompasses the EEC and EC in situations prior to the
Lisbon Treaty.
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Introduction
The accession of the European Union (hereafter EU) to the European Convention for the
Protection of Human Rights and Fundamental Freedoms1 (hereafter ECHR) is a process that has
been lingering on for years.2 The Court in Luxembourg had stated in 1996 that accession was
impossible under the competences at the time, it could therefore only be achieved after a Treaty
amendment.3 The Treaty of Lisbon finally opened the door to accession: the new art. 6 of the
Treaty on the European Union (hereafter TEU)4 contains an obligation for the EU to accede to
the ECHR.5 With Protocol No. 14 to the ECHR the Council of Europe made accession possible on
her part.6
There are several reasons why EU accession to the ECHR is deemed necessary.7 First of all,
accession would bring the EU and its institutions under the external control of the European
Court of Human Rights (hereafter ECtHR), enhancing fundamental rights protection for
individuals.8 Second, it would lead to a more uniform development of human rights law in
Europe.9 At present there are two human rights instruments applicable; the Charter of
Fundamental Rights of the European Union (hereafter ‘the Charter’) and the ECHR.10 Open
conflict in the application of those instruments is unlikely because of the dialogue between the
Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, CETS.
No. 005
2 Already in 1979 the Commission stated that the EU should accede to the ECHR as fast as possible:
Commission Memorandum (EC) COM (79) 210 final of 2 May 1979, ‘Accession of the European
Communities to the European Convention on Human Rights’ [1979] Bulletin of the European
Communities, Supplement 2/79, 5
3 Opinion 2/94 Accession by the Community to the European Convention for the Protection of Human Rights
and Fundamental Freedoms [1996] ECLI:EU:C:1996:140, para. 35
4 Consolidated version of the Treaty on European Union of 26 October 2012 [2012] OJ C 326
5 Article 6(2) TEU reads: “The Union shall accede to the European Convention for the Protection of Human
Rights and Fundamental Freedoms. Such accession shall not affect the Union’s competences as defined in the
Treaties”
6 Article 17(1) Protocol No. 14 to the Convention for the Protection of Human Rights and Fundamental
Freedoms, amending the control system of the Convention,13 May 2004, CETS No. 194
7 For an elaborate overview of arguments in favour of accession, see: Parliamentary Assembly of the
Council of Europe, Committee on Legal Affairs and Human Rights report (Doc. 11533) of 18 May 2008 ‘The
accession of the European Union/European Community to the European Convention on Human Rights’
<http://www.europarl.europa.eu/document/activities/cont/201003/20100324ATT71249/20100324AT
T71249EN.pdf> (accessed 25 April 2015)
8 European Parliament Resolution (2009/2241 (INI)) of 19 May 2010 on the institutional aspects of the
accession of the European Union to the European Convention for the Protection of Human Rights and
Fundamental Freedoms [2011] OJ CE161/72, point L
9 M. Kuijer, ‘The accession of the European Union to the ECHR: a gift for the ECHR’s 60 th anniversary or an
unwelcome intruder at the party?’ (2011) Vol. 3 No 4 Amsterdam Law Forum 21
<http://amsterdamlawforum.org/article/view/240> (accessed 25 April 2015)
10 Charter of Fundamental Rights of the European Union [2000] OJ C364/01
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Court of Justice of the European Union (hereafter CJEU) and the ECtHR, but cannot entirely be
excluded.11 Finally, another reason for the EU to accede to the ECHR is a rather symbolic one and
a matter of image. The EU proclaims to be a legal order based on the rule of law, respecting
fundamental rights; it is therefore considered that it should be part of the most elaborate human
rights protection system on the territory of Europe.12
Negotiations between the Council of Europe and the EU took off in 2010, first in the informal
group CDDH-UE, later in the ad hoc group ‘47+1’.13 These steps were concluded in 2013 with a
bundle of accession documents, including a Draft Accession Agreement (hereafter DAA) and a
Draft Explanatory Report.14 These accession instruments were submitted to the CJEU by the
European Commission for an opinion pursuant to Article 218(11) of the Treaty on the
Functioning of the European Union (hereafter TFEU).15 On 18 December 2014 the CJEU
delivered its notorious Opinion 2/13, declaring the DAA and related accession instruments
incompatible with the Treaties.16 The common thread throughout the opinion is that the DAA
fails to preserve the specific characteristics of the EU and the autonomy of its legal order.
Although the negative outcome of this opinion came as a surprise to many and has drawn a lot of
criticism,17 the previous case law of the CJEU already gave clear indications on the direction the
CJEU would take. This dissertation aims at identifying how exactly accession under the
conditions of the DAA would have interfered with the autonomy of EU law.
For an example of potential different interpretations by both courts, see C. Van de Heyning, ‘De
Toetreding van de EU tot het EVRM: goede afspraken maken goede vrienden’ (2012) Tijdschrift voor
Constitutioneel Recht 237; A short overview of the relation between the EU and the ECHR (including the
position of the CJEU and the ECtHR) is also provided in the introduction of Part I of this text.
12 See Article 2 TEU, first sentence: “The Union is founded on the values of respect for human dignity,
freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons
belonging to minorities”; S. Douglas-Scott, ‘The Court of Justice of the European Union and the European
Court of Human Rights after Lisbon’ in S. De Vries, U. Bermitz. and S. Weatherill (eds.) The protection of
Fundamental Rights in the EU after Lisbon (Hart Publishing Ltd., Oxford 2013) 165
13 Final report to the CDDH (47+1(2013)008rev2), 10 June 2013, paras. 2 and 6
<http://www.coe.int/t/dghl/standardsetting/hrpolicy/Accession/Meeting_reports/47_1(2013)008rev2_
EN.pdf> (accessed 26 April 2015)
14 Ibid., Appendices I – V
15 Consolidated version of the Treaty on the Functioning of the European Union of 26 October 2012 [2012]
OJ C 326
16 Opinion 2/13 Accession of the European Union to the European Convention for the Protection of Human
Rights and Fundamental Freedoms [2014] ECLI:EU:C:2014:2454 (hereafter cited as ‘Opinion 2/13’)
17 First reactions to Opinion 2/13 appeared on blogs and were characterised by a general negative tone,
see for example: S. Douglas-Scott, ‘Opinion 2/13 on EU accession to the ECHR: a Christmas bombshell from
the European Court of Justice’ <http://ukconstitutionallaw.org/2014/12/24/sionaidh-douglas-scottopinion-213-on-eu-accession-to-the-echr-a-christmas-bombshell-from-the-european-court-of-justice/>;
S. Peers, ‘The CJEU and the EU’s accession to the ECHR: a clear and present danger to human rights
protection’, <http://eulawanalysis.blogspot.be/2014/12/the-cjeu-and-eus-accession-to-echr.html>; T.
Lock, ‘Oops! We did it again – the CJEU’s Opinion on EU Accession to the ECHR’,
<http://www.verfassungsblog.de/en/oops-das-gutachten-des-eugh-zum-emrk-beitritt-dereu/#.VStx1vmsX3Z>
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2
The EU would be the first non-state party, characterised by its own autonomous legal order, to
accede to the ECHR. The negotiators of the accession instruments were confronted with several
institutional, procedural and substantive problems related to the participation of the EU in the
Convention system.18 On the side of the Council of Europe for instance, adaptations were
required to enable the participation of the EU in the Committee of Ministers, while on the side of
the EU the main concern was that its special characteristics might be affected. 19 Accession to the
ECHR would bring the EU under the external control of the ECtHR. The fear that this would have
too great an impact on the autonomy of the EU legal order is the main impediment in the process
of accession.
The central research question of this dissertation is what the impact of accession under the
conditions of the DAA would be on the autonomy of the EU legal order. To answer this question
following matters will be addressed:
1. What is the meaning of the concept ‘autonomy of the EU legal order’?
2. How does the CJEU deal with the autonomy of the legal order in the external relations of
the EU?
3. What impact would accession to the ECHR have on the autonomy of the EU legal order in
the light of the case law of the CJEU?
4. How does the DAA address the issues that arise in the context of autonomy?
5. On which points does the DAA fail to preserve the autonomy of the EU legal order and
what possible solutions could be provided?
This dissertation is divided in two main parts. Part I is devoted to the concept of autonomy of EU
law and what the consequences of this notion are for accession to the ECHR. The introduction
covers some preliminary remarks on the present human rights situation in the EU and the ties
between the EU and the ECHR system. Chapter I analyses the concept of the autonomous legal
order of the EU and its consequences for the position of the EU on the international scene, in
particular in relation to the ECHR system. Chapter II builds upon the first chapter, deducing four
principles from the case law of the CJEU that serve as prerequisites for the EU to accede to the
For an overview of the different issues in the context of accession, see for example X. Groussot, T. Lock
and L. Pech, ‘EU accession to the European Convention on Human Rights: a legal assessment of the Draft
Accession Agreement of 14 October 2011’ (2011) Foundation Robert Schuman European issues No. 218,
<http://www.robert-schuman.eu/en/doc/questions-d-europe/qe-218-en.pdf>; J. Martin Y Perez De
Nanclares, ‘The accession of the European Union to the ECHR: More than just a legal issue’ (2013)
Working Paper IDEIR No. 15, <https://www.ucm.es/data/cont/docs/595-2013-11-07the%20accesion.pdf>
19 See Protocol No. 8 relating to Article 6(2) of the Treaty on the European Union on the Accession of the
Union to the European Convention on the Protection of Human Rights and Fundamental Freedoms [2012]
OJ C 326
18
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ECHR without interference with its autonomy. Part II focusses entirely on the Draft Accession
Agreement of 2013. Chapter I analyses and assesses the solutions that are provided to ensure
the preservation of the autonomy of the EU legal order. These include two novelties to the ECHR
system (the co-respondent mechanism and the procedure for prior involvement of the CJEU)
and a solution for the clash between Article 344 TFEU and the possibility in the ECHR to launch
inter-state cases. Chapter II deals with four aspects that were not dealt with explicitly by the
DAA (for varying reasons) and proved to be problematic for the autonomy of EU law. These
problems are related to the Common Foreign and Security Policy of the EU (hereafter CFSP),
Article 53 of the Charter, the principle of mutual trust under EU law and Protocol No. 16 to the
ECHR.20
METHODOLOGY
The starting point to answer the central research question is the DAA, analysed through the
point of view of the case law of the CJEU and the ECtHR. Emphasis is placed on the opinions and
judgments of the CJEU to determine how to deal with questions of autonomy and compatibility
of international agreements with the Treaties. Working documents and meeting reports of the
negotiations are also analysed to provide better understanding of the solutions that were chosen
by the negotiators for the final version of the DAA. Finally, since the accession of the EU to the
ECHR is a favoured topic of legal scholars, their suggestions and opinions are included as well to
form a broad and balanced conception of the matter.
PURPOSE
Now that the CJEU pronounced itself so negatively on the DAA in Opinion 2/13, it is undeniable
that accession under the conditions of the present DAA would have interfered with the
autonomy of EU law. This dissertation analyses the specific aspects that cause this interference
and attempts to explain the rationale of the CJEU. Additionally, in the aftermath of Opinion 2/13
the question rises what will come next. Possible solutions are explored for the problematic
aspects of the DAA. As a final point, even though the central research question is limited to an
issue of EU law, the conclusion also contains a critical note. A question that emerges is whether,
in this particular case, it should be acceptable to allow an impact on the EU legal order, for the
purpose of protecting human rights.
Protocol No. 16 to the Convention for the Protection of Human Rights and Fundamental Freedoms, 2
October 2013, CETS No. 214
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4
Part I. Autonomy of the EU legal
order: standing in the way of
accession to the ECHR
INTRODUCTION: SETTING THE SCENE
I. Two households, both alike in dignity
1.
As a consequence of Opinion 2/13 (in which the CJEU declared the Draft Accession
Agreement incompatible with EU primary law) the EU will for now not accede to the ECHR.21 By
bringing the EU legal order as a whole under the jurisdiction of the ECtHR this accession would
have brought significant changes for the human rights situation in the EU. At the same time,
under the conditions of the present DAA – as the CJEU pointed out strongly in Opinion 2/13 –
accession would have caused an impact on the autonomy of the EU legal order. Before
elaborating on the central research question of this dissertation, what the extent of this impact
would be, this part will briefly outline the situation without the EU as a formal party to the
ECHR, a situation that for now remains intact.
2.
The relation between the EU and the ECHR system has been characterised by mutual
respect and judicial dialogue.22 Of particular importance for this research is the relation between
the CJEU and the ECtHR as the highest adjudicators, each in their legal order. Most of the changes
that accession to the ECHR would bring, involves the position of both courts and the limits of
their jurisdiction.23
1. The EU and the ECHR
3.
Whereas all EU Member States are parties to the ECHR, the EU itself currently is not.
Consequently, the EU is not directly bound by the provisions of the ECHR or by the case law of
The title ‘Two households, both alike in dignity’ is a reference to Shakespeare’s Romeo and Juliet, Act I,
Prologue; Opinion 2/13 Accession of the European Union to the European Convention for the Protection of
Human Rights and Fundamental Freedoms [2014] ECLI:EU:C:2014:2454
22 P. Craig and G. De Búrca, EU law, text, cases, and materials (Oxford University Press, New York 2011)
404-406
23 For an analysis of the relation between the CJEU and ECtHR before and after accession, see S. DouglasScott, ‘The Court of Justice of the European Union and the European Court of Human Rights after Lisbon’ in
S. De Vries, U. Bermitz. and S. Weatherill (eds.) The protection of Fundamental Rights in the EU after Lisbon
(Hart Publishing Ltd., Oxford 2013) 153
21
5
the ECtHR.24 Even though the EU is under no legal obligation to abide by the ECHR, throughout
the years of European integration it has relied on the Convention as an inspiration for human
rights development in its own legal order.
4.
At the establishment of the European Economic Community the founding fathers
emphasised the economic aspect of integration; as a result the EEC Treaty did not contain
explicit provisions related to human rights protection.25 It was the well-known decision of the
German Constitutional Court in Solange I26 that forced the CJEU to develop a doctrine concerning
fundamental rights. The German Constitutional Court made clear that it would not accept the
primacy of EU law as long as the EU itself did not provide a sufficient standard of human rights
protection.27 As a reaction, in Stauder the CJEU referred to human rights as part of the general
principles of Community Law.28 Clarification on the content of these principles was soon
provided in Internationale Handelsgesellschaft, where the CJEU declared that the general
principles of Community Law were inspired by “constitutional traditions common to the Member
States.”29 Over the following years the source of inspiration for human rights as general
principles gradually moved to international human rights treaties signed by the Member states
in general, to the ECHR in particular.30 When dealing with a question related to human rights, the
CJEU also takes into consideration the case law of the ECtHR.31
5.
For a long time the fundamental rights protection in the EU was solely based on the
general principles of EU law and the EU did not have its own codification of fundamental rights.
Change was brought in 2000, when the Charter of Fundamental Rights of the European Union
Accession by the European Union to the European Convention on Human Rights – Answers to
frequently asked questions, 1,
<http://www.coe.int/t/dghl/standardsetting/hrpolicy/Accession/Accession_documents/EU_accessionQA_updated_2013_E.pdf> (accessed 26 April 2015)
25 Treaty establishing the European Economic Community of 25 March 1957; S. Douglas-Scott, ‘The
European Union and Human Rights after the Treaty of Lisbon’ (2011) 11 Human Rights Law Review 647648
26 BVerfGE 37, 271 2 BvL 52/71, Solange I, English version in (1975) 12 CML Rev 275, 307
27 C. Van de Heyning, ‘De Toetreding van de EU tot het EVRM: goede afspraken maken goede vrienden’
(2012) Tijdschrift voor Constitutioneel Recht 230
28 Case 26/69 Erich Stauder v. City of Ulm-Sozialamt [1969] ECLI:EU:C:1969:57, para. 7.
29 Case 11/70 Internationale Handelsgesellschaft [1970] ECR 1125, para. 4
30 Case 4/73 Nold, Kohlen- und Baustoffgroßhandlung v Commission of the European Communities [1974]
ECLI:EU:C:1974:51, para. 13; Case 44/79 Liselotte Hauer v Land Rheinland-Pfalz [1979]
ECLI:EU:C:1979:290, para. 15; Joint cases 46/87 and 227/88 Hoechst AG v Commission of the European
Communities [1989] ECLI:EU:C:1989:337, para. 13; Joint Declaration by the Parliament, the Council and
the Commission of 5 April 1977 concerning the protection of fundamental rights and the Convention for
the Protection of Human Rights and Fundamental Freedoms [1977] OJ C103/1
31 See for example Joint cases 46/87 and 227/88 Hoechst AG v Commission of the European Communities
[1989] ECLI:EU:C:1989:337, para. 18
24
6
was proclaimed.32 It provides an extensive codification and goes beyond the scope of the ECHR,
not only protecting human rights of the first and second generation, but also economic, social
and collective rights.33 The Charter was initially designed as a non-binding document, but
obtained the same legal value as the Treaties with the Lisbon Treaty.34 The Charter is now part
of EU primary law, causing a significant increase in case law of the CJEU referring to its
provisions since the entry into force of the Lisbon Treaty.35 It applies to all EU institutions, and to
the Member States when they are implementing EU law.36 As is the case for the general
principles of EU law, there is a clear link between the Charter and the ECHR. The Preamble of the
Charter directly refers to the ECHR and the case law of the ECtHR, and Article 52(3) provides
that the interpretation of Charter provisions that correspond to rights of the ECHR should be
based on the scope and meaning given to those rights in the ECHR.
6.
The present Article 6 TEU acknowledges the general principles of EU law as they are
conceived in the case law of the CJEU, grants the Charter its legally binding status, and obliges
the EU to accede to the ECHR. It is important to note that accession will fundamentally change
the status of the ECHR in the legal order of the EU. It has been explained that at present the
ECHR merely serves as an inspiration for the fundamental rights standards of the EU. It is not
part of EU law and does not directly bind the EU itself or its institutions. According to the
Haegeman doctrine, an international agreement concluded by the EU becomes an integral part of
EU law.37 Consequently, accession will grant the ECHR legally binding status within the EU. All
EU institutions, including the CJEU, will be under a legal obligation to abide by the provisions of
the ECHR.
7.
The binding status of the ECHR would not only have consequences for the EU
institutions, but also for the Member States. When implementing EU law, the Member States
would then under EU law not only be bound by the Charter, but also by the ECHR. This
consequence of accession comes with several problems for the legal order of the EU. As will be
discussed below, the standards of the ECHR do not always get along well with the specific nature
of the EU.38 This could eventually leave the Member States with the possibility of invoking
Charter of Fundamental Rights of the European Union [2000] OJ C364/01
E.F. Defeis, ‘Human Rights, the European Union, and the Treaty route: from Maastricht to Lisbon’ (2012)
35 Fordham International Law Journal 1228
34 Article 6(1) TEU
35 G. de Búrca, ‘After the EU Charter of Fundamental Rights: The Court of Justice as a human rights
adjudicator?’ (2013) Vol. 20 Maastricht Journal of European and Comparative Law 169
36 Article 51(1) of the Charter
37 Case 181/73 Haegeman v. Belgian State [1974] ECLI:EU:C:1974:41
38 See numbers 37 144, 147
32
33
7
provisions of the ECHR to disapply (other) provisions of EU law, or having to meet divergent
requirements under the ECHR on one side, and the Charter or other EU law on the other.39
8.
Another difficulty in the context of EU accession to the ECHR is that the Convention is the
basic document in a legal system with its own court, the ECtHR. The ECtHR is in charge of the
interpretation and application of the Convention.40 It does so by hearing individual applications
of victims of human rights violations and by dealing with cases between the High Contracting
Parties.41 Accession thus creates the situation where two adjudicators will operate partly in the
same field: both the CJEU and the ECtHR will have the power to assess the compatibility of acts,
omissions and provisions of EU law with fundamental rights. The CJEU in principle does not
oppose such external review,42 but has made very clear (in settled case law and in the most
obvious way in Opinion 2/13) that the jurisdiction of another court such as the ECtHR cannot
have any consequences for its own essential characteristics as established by the Treaties.43 It
already becomes clear that reconciling the legal order of the EU and the ECHR system in the
context of accession is not an easy task.
2. The ECtHR and EU law
9.
One of the main arguments in favour of accession expresses the wish to have external
human rights control by the ECtHR over the EU.44 Because the EU itself is not a party to the
ECHR, it cannot be brought before the ECtHR as a respondent for an alleged ECHR violation.45
The same applies to applications directed against all Member States jointly; the ECtHR has no
jurisdiction ratione personae to rule on such matters.46 Consequently, without the EU as a formal
party to the Convention, no direct supervision over the EU itself and EU law is possible in
Strasbourg.
10.
However, since the EU Member States are all parties to the Convention the ECtHR found
a way to have (limited) jurisdiction over ECHR violations arising from obligations under EU law.
Ibid.
Article 32 ECHR
41 Article 19 and Articles 33-34 ECHR
42 Opinion 1/76 Draft Agreement establishing a European laying-up fund for inland waterway vessels [1977]
ECLI:EU:C:1977:63, para. 5 (hereafter cited as ‘Opinion 1/76’)
43 See for example Opinion 1/91 Draft agreement between the Community, on the one hand, and the
countries of the European Free Trade Association, on the other, relating to the creation of the European
Economic Area [1991] ECLI:EU:C:1991:490
44 See also the arguments pro accession provided in the introduction and the literature mentioned there
(page 1 )
45 See for example Confederation Française Democratique du Travail v. the European Communities (App no
8030/77) (1978) 13 DR 236
46 Ibid.
39
40
8
The ECtHR tries to fill the gap by holding the Member States responsible for human rights
violations caused by measures taken to comply with obligations under EU law. Such violations of
the ECHR can occur in different situations, leading to different approaches developed by the
ECtHR, depending on whether the Member States act to comply with a provision of EU primary
or secondary law. In short,47 if a Member State acts to comply with its obligations under primary
law and in doing so violates the ECHR, it will be held responsible by the ECtHR.48 If a Member
State violates the ECHR to comply with an obligation under secondary law, it will again be held
responsible in Strasbourg, provided that the secondary law at issue leaves some discretion for
the Member State in its implementation.49 On the other hand, if EU secondary law leaves no
discretion for the Member States, the ECtHR will apply the so called ‘Bosphorus presumption’.50
According to this presumption the EU provides a system of fundamental rights protection that is
at least equivalent to the protection offered by the ECHR. 51 The presumption can be rebutted, in
which case the Member State will be held accountable, if the protection under EU law in a
specific case is found to have been manifestly deficient.52
11.
After accession there would be no need for such theoretical constructions or rebuttable
presumptions.53 If the EU becomes a party to the ECHR, a victim of a human rights violation
could bring an application before the ECtHR against the EU itself. Having the possibility of filing
an application against the EU would be a welcome improvement for ECHR violations stemming
from EU law that cannot be attributed to the Member States. This is the case when a violation
does not take place under the jurisdiction of a Member State. At present, in such a situation the
victim is left without recourse before the ECtHR. 54
A more elaborate analysis of this case law is provided in numbers 72, 75, 78
Matthews v. UK (App. No. 24833/94) ECHR 1999-I
49 Cantoni v. France (App. No. 17862/91) ECHR 1996-IV and M.S.S. v. Belgium and Greece (App. No.
30696/09) ECHR 2011
50 Bosphorus Have Yollari Turzim Ve Ticaret Anonim Sirketi v. Ireland (App. No. 45036/98) ECHR 2005-VI
51 Ibid., para. 155 ; for a thorough analysis see T. Lock, ‘Beyond Bosphorus: the European Court of Human
Rights’ Case law on the Responsibility of Member States of International Organisations under the
European Convention on Human Rights’
<http://epubs.surrey.ac.uk/266202/3/Lock_Beyond_Bosphorus%202.pdf> (accessed 18 October 2014)
52 Bosphorus Have Yollari Turzim Ve Ticaret Anonim Sirketi v. Ireland (App. No. 45036/98) ECHR 2005-VI,
para. 156
53 See also footnote 206 where it is argued that after accession there would be no more need for the
Bosphorus presumption
54 This was at issue in Connolly v. 15 Member States of the European Union (App no 73274/01) (ECtHR 9
December 2008)
47
48
9
II. The concern to preserve the specific characteristics of the EU
12.
The short overview of the current relation between the EU and the ECHR system given
above demonstrates that even without accession to the ECHR, the EU relies upon the ECHR and
the case law of the ECtHR in developing its own fundamental rights policy. The ECtHR on the
other hand has shown a great amount of respect towards the EU legal order, and even considers
the fundamental rights protection offered by the EU equivalent to the protection under the
ECHR. At the same time, numbers 7 and 8 already exposed some of the problems in the context
of accession with regards to the special nature of the EU. These and other issues that relate to
the autonomy of the EU legal order are the subject of this research.
13.
In 1979 the Commission already stated in a Memorandum that the EU should accede to
the ECHR as fast as possible.55 At the same time it became clear that the main obstacle, and the
main argument against accession would be that it would interfere too much with the specific
characteristics of the EU.56 During the decades of debating the possibility of accession, a constant
feature has been the request from the EU not to endanger the autonomy of its legal order.
14.
First of all, the EU legal documents concerning accession to the ECHR clearly
demonstrate the need to take into account the specific nature of the EU. The legal basis for
accession to the ECHR is situated in Article 6(2) TEU:
“The Union shall accede to the European Convention for the Protection of Human
Rights and Fundamental Freedoms. Such accession shall not affect the Union’s
competences as defined in the Treaties.”57
The second sentence is of particular importance for the topic of this dissertation. The EU shall
accede to the ECHR, but only under certain circumstances. Protocol No. 8 relating to Article 6(2)
TEU confirms the position of the EU regarding the preservation of the autonomous legal order.58
The Protocol expressly states that the accession agreement cannot jeopardise the specific
characteristics of the EU, including the division of competences (Article 1(b)) and the position of
the CJEU (Article 3). The CJEU itself has also emphasised the need for procedures adapted to the
Commission Memorandum (EC) COM (79) 210 final of 2 May 1979, ‘Accession of the European
Communities to the European Convention on Human Rights’ [1979] Bulletin of the European
Communities, Supplement 2/79, 5
56 The Commission points out some of the difficulties that relate to the special nature of the EC and the
jurisdictional structure in their legal order: Commission Memorandum (EC) COM (79) 210 final of 2 May
1979, ‘Accession of the European Communities to the European Convention on Human Rights’ [1979]
Bulletin of the European Communities, Supplement 2/79, 13-15
57 Emphasis added
58 Protocol No. 8 EU; The same is referred to in ‘the Declaration on article 6(2) of the Treaty of the
European Union’ (Consolidated version of the Treaty on European Union of 26 October 2012, Declaration
on article 6(2) of the Treaty of the European Union, annexed to the Final Act of the Intergovernmental
Conference which adopted the Treaty of Lisbon, signed on 13 December 2007 [2012] OJ C 326)
55
10
specific situation of the EU in a discussion document of 5 May 2010.59 The presidents of the CJEU
and the ECtHR even issued a joint communication in which they laid out different possibilities
and solutions that should be taken into consideration during the negotiations and drafting
process of the accession instruments.60
15.
These same legal provisions (Article 6(2) TEU and Protocol No. 8 EU) were now invoked
in Opinion 2/13.61 The CJEU underlined that the EU is not based on an ordinary international
agreement, but constitutes a separate legal order with its own distinct features.62 After analysing
the DAA, the CJEU came to the conclusion that the proposed agreement is not compatible with
Article 6(2) TEU and Protocol No. 8 EU. More specifically, the CJEU referred to the failure of the
DAA to take into account the specific characteristics of EU law and its autonomy.63
Discussion document of the Court of Justice of the European Union on certain aspects of the accession of
the European Union to the European convention for the Protection of Human Rights and Fundamental
Freedoms, 5 May 2010, <http://curia.europa.eu/jcms/upload/docs/application/pdf/201005/convention_en.pdf> (accessed 26 April 2015)
60 Joint communication from presidents Costa and Skouris of 24 January 2011,
<http://curia.europa.eu/jcms/upload/docs/application/pdf/2011-02/cedh_cjue_english.pdf> (accessed
26 April 2015)
61 Opinion 2/13, o.c.
62 Opinion 2/13, o.c., para.166-167
63 See Opinion 2/13, o.c., paras. 200, 235, 248, 257
59
11
CHAPTER I: AUTONOMY OF THE EU LEGAL ORDER
16.
This dissertation aims at identifying in what way the accession of the EU to the ECHR
would have an impact on the autonomy of the EU legal order. This question entails two concepts,
two presumptions on the nature of the EU: the EU is a legal order, and this legal order has
autonomy. To understand why the preservation of autonomy is so important and how accession
could interfere with it, first it is necessary to understand the concept. Preliminary to analysing
accession as such and what consequences it may bring, it is therefore considered necessary to
determine the meaning and scope of the notion ‘autonomy of the EU legal order’.
I. Autonomy as a constitutional principle
17.
The concept ‘legal order’ originally arises from theories on sovereignty of states and the
relation of their national systems with international law.64 It can be considered as a whole of
rules and principles, or as a system based on the principle of rule of law, characterised by its
unity.65 In Opinion 2/13 the CJEU recalls that in EU terms this does not translate to a state like
structure, but to a sui generis system with “its own constitutional framework and founding
principles, a particularly sophisticated institutional structure and a full set of legal rules to ensure
its operation.”66
18.
This reasoning goes back to Van Gend en Loos, where the CJEU ruled that the EEC Treaty
was not just an international agreement creating obligations between its contracting states.67
According to the CJEU:
“the Community constitutes a new legal order of international law for the benefit of
which the states have limited their sovereign rights (…)”68
19.
The CJEU clearly stated that the Member States had created a new legal order of
international law. Following this reasoning, this legal order has to be seen separately from the
existing national legal order69 and the international legal order. This way, a new category of law
R. Barents, The Autonomy of Community Law (Kluwer Law International, The Hague 2004) 168
Ibid., 169
66 Opinion 2/13 Accession of the European Union to the European Convention for the Protection of Human
Rights and Fundamental Freedoms [2014] ECLI:EU:C:2014:2454, para. 158
67 Case 26/62 Van Gend en Loos v. Nederlandse Administratie der Belastingen [1963] ECLI:EU:C:1963:1, B,
third para.
68 Ibid. fifth para., emphasis added: the CJEU saw the existence of a legal order confirmed in multiple parts
of the EEC Treaty, for example in “the establishment of institutions endowed with sovereign rights” and in
“the task assigned to the Court of Justice under Article 177 [EEC Treaty, current Article 267 TFEU]” (ibid.,
third para.)
69 Case 13/61 Kledingverkoopbedrijf de Geus en Uitdenbogerd v Robert Bosch GmbH and Maatschappij tot
voortzetting van de zaken der Firma Willem van Rijn [1962] ECLI:EU:C:1962:11, para. 49
64
65
12
is created between national and international law.70 In Costa v. ENEL71 the CJEU again stressed
the difference between the EEC Treaty and ordinary international agreements and introduced
the principle of primacy of EU law over national law of the Member States as an essential aspect
of the EU legal order:
“the law stemming from the treaty, an independent source of law, could not because of
its special and original nature, be overridden by domestic legal provisions, however
framed, without being deprived of its character as community law and without the
legal basis of the community itself being called into question.”72
20.
The constitutional Treaties of the EU therefore are independent, or autonomous, sources
of law. If there would be no autonomy, EU law could be assessed by constitutional principles of
the Member States.73 This in itself would endanger the uniform interpretation and application of
EU law (as protected by the CJEU, see infra number 25) and in that way undermine the whole EU
system.74 The EU exists independent of any other legal order, and finds the basis of its law in
itself and in its constitutional documents, the Treaties. According to Barents this entails that EU
law “determines its own scope (...), its legal effects on situations coming within its scope (...), and its
relation to other areas of law.”75 The EU is autonomous towards the national legal orders of the
Member States, and at the same time towards the international legal order.76 Put differently:
there are two aspects to the autonomy: an internal and an external aspect.77
21.
In Kadi the essential question was whether a Community regulation that gave effect to a
resolution of the UN Security Council could be subject to judicial review by the CJEU.78 Contrary
to the Court of First Instance, the Court of Justice – recalling the principle of the rule of law79 –
ruled that judicial review in that case by the CJEU could not be avoided.80 This review “must be
I. Pernice, ‘The Autonomy of the EU Legal Order — Fifty Years After Van Gend’ in 50th anniversary of the
judgment in Van Gend en Loos, Conference Proceedings, Luxembourg 13 May 2013, 57.
71 Case 6/64 Costa v. ENEL [1964] ECLI:EU:C:1964:66
72 Ibid., ECR 594, emphasis added
73 J.W. van Rossem, ‘The Autonomy of EU Law: More is Less?’ in R. A. Wessel and S. Blockmans (eds.)
Between Autonomy and Dependence, The EU Legal Order Under the Influence of International Organisations
(Asser Press, The Hague 2013), 15.
74 Ibid.
75 R. Barents, The autonomy of Community law (Kluwer Law International, The Hague 2004) 12
76 T. Lock, ‘Walking on a tightrope: the draft ECHR accession agreement and the autonomy of the EU legal
order’ (2011) 48 CML Rev 1028; B. De de Witte, ‘European Union Law: How Autonomous is its Legal
Order?’ (2010) Vol. 65 Issue 1 Zeitschrift für öffentliches Recht 142
77 R. A. Wessel and S. Blockmans (eds.) Between Autonomy and Dependence, The EU Legal Order Under the
Influence of International Organisations (Asser Press, The Hague 2013), 2
78 Joined cases C-402/05 P and C-415/05 P Yassin Abdullah Kadi and Al Barakaat International Foundation
v Council of the European Union and Commission of the European Communities [2008] ECLI:EU:C:2008:461
79 Case 294/83 Parti écologiste ‘Les Verts’ v. European Parliament [1986] ECLI:EU:C:1986:166, para. 23
80 The Court of First Instance had decided that judicial review was not possible, since the EU was bound by
international law. In essence, the Court of First Instance used the distinction between the international
70
13
considered to be the expression, (...) of a constitutional guarantee stemming from the EC Treaty as
an autonomous legal system which is not to be prejudiced by an international agreement.”81.
22.
Summarising the Kadi and Costa v. ENEL principles, it can be concluded that the EU legal
order is autonomous, therefore it cannot be prejudiced by other norms, whether they emanate
from the legal order of the Member States or the international legal order. In the context of
accession to the ECHR this comes with the necessary consequence that the EU can only accede if
it is guaranteed that the self-referential character of EU law is preserved.82
23.
It is important to note that the autonomy discourse of the CJEU has far reaching
consequences. In Kadi, the CJEU ruled that an international agreement cannot prejudice the
constitutional principles of the EU legal order, with special focus on fundamental rights. 83
However, whereas the autonomy argument in this case was used in favour of fundamental rights
protection, it can also work against it. In Melloni became clear how far the CJEU is willing to push
the protection of autonomy.84 Until this ruling there was doubt on the exact meaning of Article
53 of the Charter which elaborates on the level of fundamental rights protection that can be
offered by the Member States when they are implementing EU law. According to the CJEU, when
the Member States are implementing EU law, national standards of protection that are higher
than the standards of the Charter cannot be applied when they would compromise “the level of
protection provided for by the Charter, as interpreted by the Court, and the primacy, unity and
effectiveness of EU law”.85 One could argue that, regardless of the importance of uniform
application of EU law and the autonomy of the legal order, the protection of fundamental rights
should prevail.86 It seems rather indefensible from a human rights point of view that an
individual cannot be provided the highest level of protection, only because it would endanger
the primacy, unity or effectiveness of EU law. The reasoning in Melloni is particularly important
for this research since it forms the basis of one of the arguments in Opinion 2/13 invoked by the
CJEU to decide that the provisions of the DAA interfere with the autonomy of the EU legal
order.87
legal order of the United Nations and the legal order of the European Community and decided the
international provisions had primacy over EU law (Case T-315/01 Kadi v Council and Commission[2005]
ECLI:EU:T:2005:332, para. 283-285)
81 Joined cases C-402/05 P and C-415/05 Kadi, o.c., para. 316
82 See numbers 36 and 39
83 Joined cases C-402/05 P and C-415/05 Kadi, o.c., para. 285
84 Case C399/11 Stefano Melloni v. Ministerio Fiscal [2013] ECLI:EU:C:2013:107
85 Ibid., para. 60
86 L. F.M. Besselink, ‘The parameters of constitutional conflict after Melloni’, (2014) Vol. 39 Nr. 4 European
Law Review 533 and 556
87 Opinion 2/13, o.c., paras. 187-190; see numbers 142-146
14
II. Autonomy and dispute settlement mechanisms under
international law
24.
The objections of the CJEU to accession under the conditions of the DAA in Opinion 2/13
discussed in this text all have their core in the autonomy principle. The DAA fails to ensure the
primacy of EU law, the essential characteristics of the EU and its institutions, and most
importantly, the exclusive jurisdiction of the CJEU.88 These arguments of the CJEU did not appear
out of thin air. The CJEU provides consistent case law in which it delimits the autonomy principle
and the consequences thereof for international agreements concluded under EU law. In the past,
the CJEU has refused the participation of the EU in several international agreements and has set
boundaries to influences from dispute settlement mechanisms under such agreements. It is
necessary to analyse this case law to reveal the principles the CJEU applies, since similar
problems arise in the context of accession to the ECHR.
25.
Autonomy appears in different facets in the case law of the CJEU but can be viewed as
giving expression to the need for a uniform interpretation and application of EU law.89 It is the
CJEU that guards the EU legal order and its autonomy:90 it has the task of ensuring uniform
interpretation and application of EU law (Article 19 TEU) and does so on the basis of its
exclusive jurisdiction (Article 344 TFEU). Because of the central role of the CJEU the greatest
threat to the external autonomy is caused by dispute settlement mechanisms under
international law. By acceding to international agreements that have their own dispute
settlement bodies it is inherent that the EU accepts a certain amount of influence from these
bodies. However, this influence cannot go as far as undermining the autonomy of the EU.
Accession to the ECHR would entail that the ECtHR would gain competence to review the
conformity of (action and omission under) EU law with the ECHR, and would in that way come
within the territory of fundamental rights jurisdiction of the CJEU. It should therefore bear no
surprise that the negotiations of the accession to the ECHR mainly revolved around maintaining
the position and jurisdiction of the CJEU.
26.
The CJEU in principle does not oppose the conclusion of international agreements that
include their own dispute settlement bodies and even accepts the binding nature of their
decisions upon the EU.91 This is important to note, since it entails that the external control itself
Opinion 2/13, o.c., para. 258
J.W. van Rossem, ‘The Autonomy of EU Law: More is Less?’ in R. A. Wessel and S. Blockmans (eds.)
Between Autonomy and Dependence, The EU Legal Order Under the Influence of International Organisations
(Asser Press, The Hague 2013) 19
90 See also Joined cases C-402/05 P and C-415/05 Kadi, o.c., para. 316
91 Opinion 1/76 Draft Agreement establishing a European laying-up fund for inland waterway vessels [1977]
ECLI:EU:C:1977:63, para. 5
88
89
15
to be carried out by the ECtHR post-accession does not interfere with the autonomy. Neither
does the consequence that the EU (and the CJEU) would be bound by the decisions of the ECtHR
on the compatibility of acts, measures or omissions of the EU with the ECHR. However, the CJEU
has set boundaries to what is acceptable and what would undermine the autonomy of the EU
legal order. These principles will form the basis for further analysis of the accession instruments
for accession to the ECHR.
27.
A first aspect of autonomy that is of relevance for this research can be seen in the
application of Article 344 TFEU and its consequences for disputes between the Member States.
According to Article 344 TFEU a Member State cannot start proceedings against another
Member State before another dispute settlement mechanism than the CJEU when the dispute
concerns EU law. The CJEU has exclusive jurisdiction to rule on any subject for which the EU has
competence, even when this subject is to be situated in an international context.92 In Mox plant
the practical implications of this prohibition for the Member States became clear.93 The case
concerned the United Nations Convention on the Law of the Sea (hereafter UNCLOS), to which
both the EU and its Member States are parties.94 The UNCLOS includes its own dispute
settlement mechanism through arbitration. Ireland started such an arbitration procedure
against the UK and relied on certain provisions of the UNCLOS that were also implemented in
the EU legal order. By doing so, Ireland submitted EU law provisions to be interpreted by the
arbitral tribunal.95 The Commission initiated a procedure against Ireland for failure to fulfil
obligations, and the CJEU ruled that Ireland had not respected the “exclusive nature of the Court’s
jurisdiction.”96 By doing so, Ireland endangered the EU legal order and its autonomy.97 Under the
ECHR, it is also possible to lodge an inter-state complaint (Article 33 ECHR), and as will be
discussed later (number 118), the existence of this possibility undermines the exclusive
jurisdiction of the CJEU conferred to it by Article 344 TFEU.
28.
The external autonomy further demands international agreements to which the EU
becomes a party to respect the specific nature of the EU.98 The DAA is not the first agreement
that failed to sufficiently take this into account. In the past, the CJEU has declared several draft
international agreements incompatible with the Treaties because they posed a threat to the
autonomy of the EU legal order.
I. Govaere, De rechtsorde na Lissabon: hoe eigen, hoe autonoom? Thorbeckecollege 35 (Kluwers,
Mechelen 2012), 31
93 Case C-459/03 Commission v. Ireland [2006] ECLI:EU:C:2006:345
94 United Nations Convention on the Law of the Sea of 10 December 1982
95 Case C-459/03 Commission v. Ireland , o.c., para. 151
96 Ibid., para. 152
97 Ibid., para. 154
98 Joined cases C-402/05 P and C-415/05 Kadi, o.c., para. 285
92
16
29.
In Opinion 1/9199 the CJEU was asked to decide on the compatibility of the Agreement
creating a European Economic Area (EEA) with the EEC Treaty. The EEA would consist out of the
Member States of the EU and the EFTA-countries, and to this area the territorial scope of
application of certain provisions of the EEC Treaty would be extended. The Agreement also
created the Court of the EEA that would settle disputes between the contracting states. In the
CJEUs view, three elements of the proposed agreement were problematic.
30.
Two aspects of the EEA court interfered with the exclusive jurisdiction of the CJEU. The
first issue was that the EEA Court would have to decide whether the relevant party in a
procedure would be a Member State, the EU, or both of them together.100 This would affect the
allocation of competences between the Member States and the EU, and would require the EEA
Court to interpret EU law. This would interfere with the autonomy of the EU legal order, since it
would grant a competence to the EEA Court that was exclusively given to the CJEU.101 The
second issue also concerned the exclusive power of the CJEU to interpret EU law. The EEA
Agreement contained a large amount of provisions identical to provisions of EU law. By ruling on
the provisions of this Agreement and interpreting them, the EEA Court would thus at the same
time interpret EU law. That way the EEA Agreement undermined the exclusive jurisdiction of the
CJEU, and the autonomy of the EU legal order.102
31.
The EEA Agreement also created the possibility for the national courts of the EFTA
countries to ask for a preliminary ruling from the CJEU whenever a question would rise
concerning the interpretation and application of EU law. The EAA Agreement provided no
guarantee that the rulings that would be given by the CJEU in such procedure would be binding
upon requesting courts of the EFTA countries. This could not be accepted by the CJEU, since such
non-binding rulings would go against the nature of the CJEU.103 Important to note is that the
Opinion 1/91 Draft agreement between the Community, on the one hand, and the countries of the
European Free Trade Association, on the other, relating to the creation of the European Economic Area
[1991] ECLI:EU:C:1991:490
100 T. Lock, ‘Walking on a tightrope: the draft ECHR accession agreement and the autonomy of the EU legal
order’ (2011) 48 CML Rev 1029
101 Opinion 1/91, o.c., para. 35
102 Ibid., para. 36
103 Ibid, para. 61; After the first opinion of the CJEU on the EEA Agreement, amendments were made and in
Opinion 1/92 the CJEU decided the EEA Agreement was compatible with EU primary law. The Agreement
did no longer set up an EEA Court, ruling on all contracting parties, but provided for the EFTA Court. This
court would only have jurisdiction over the EFTA member states. Additionally, the Agreement now
expressly stated that the replies to be given by the CJEU to preliminary questions from the courts of the
EFTA countries would be binding. This way, the task of the CJEU as set out in the EEC Treaty was
maintained. After these amendments the Agreement no longer held a threat to the autonomy of the legal
order. (Opinion 1/92 Draft agreement between the Community, on the one hand, and the countries of the
European Free Trade Association, on the other, relating to the creation of the European Economic Area
[1992] ECLI:EU:C:1992:189)
99
17
CJEU does not oppose to an international agreement conferring new tasks on the EU and
Member State institutions, as long as their essential characteristics remain untouched.104
32.
In Opinion 1/00 the CJEU summarised two requirements that can serve as a guideline as
to what external autonomy entails.105 First, “the essential character of the powers of the
Community and its institutions as conceived in the Treaty remain unaltered (...)”106 and second,
“the procedures for ensuring uniform interpretation (...) and for resolving disputes will not have the
effect of binding the Community and its institutions, in the exercise for their internal powers, to a
particular interpretation of the rules of Community law referred to in that agreement.”107
33.
In a more recent opinion the CJEU declared the Draft Agreement on the European and
Community Patents Court incompatible with EU primary law.108 The Patents Court would have
exclusive jurisdiction in the field of Community patents, including the power to interpret EU law
and refer questions on its interpretation and application to the CJEU for a preliminary ruling.
The CJEU saw this as a threat to the autonomy of the EU legal order. First of all, the Member
State courts would be deprived of the possibility to apply this part of EU law and would not be
able to make use of the preliminary reference procedure provided by EU law. Additionally, this
way the CJEU would be deprived of the power to reply on preliminary questions of those
Member State courts. Such a situation would alter the powers conferred upon the EU and
Member State institutions by the Treaties.109
34.
The conclusion drawn from Mox Plant, and Opinions 1/91, 1/00 and 1/09 is that most of
the requirements for the protection of – or when put negatively all possible threats to – the
autonomy of the EU legal order essentially boil down to the position of the CJEU, its essential
characteristics as laid down by the Treaties and its monopoly to interpret EU law. When it comes
to this research, the greatest risk to the autonomy of EU law therefore lies in the existence of the
dispute settlement mechanisms provided by the ECHR. The cases and opinions by the CJEU
mentioned here can be seen as examples on how the autonomy of the EU legal order might be
affected by international agreements or international law in general, and how the CJEU deals
with this. Applying this case law to the context of accession to the ECHR reveals in what way
accession as such would interfere with the autonomy of the legal order.
Ibid., para. 32
Opinion 1/00 Proposed agreement between the European Community and non-Member States on the
establishment of a European Common Aviation Area [2002] ECLI:EU:C:2002:231, para. 12
106 Ibid., para. 12
107 Ibid., para. 13
108 Opinion 1/09 Draft Agreement, Creation of a unified patent litigation system [2011]
ECLI:EU:C:2011:123
109 Ibid., para. 89
104
105
18
CHAPTER II. CONSEQUENCES FOR ACCESSION TO THE ECHR
35.
In essence, on the side of the EU there are four issues that need to be taken into
account.110 These are the conditions that should be met when an international agreement is
concluded under EU law for the autonomy of the EU legal order to be preserved. Consequently,
these are the conditions that apply in the context of accession to the ECHR. First of all, because of
the self-referential nature of EU law, its primacy, unity and effectiveness must be ensured (I).
Second, as Article 6(2) TEU and Article 2 of Protocol No. 8 EU point out as well, accession to the
ECHR may not have any influence on the existing competences of the EU (II). Third, the above
analysis of case law indicates that there are two additional requirements that need to be fulfilled
for the external autonomy of the legal order to be kept intact: the powers that were granted to
both the Member States and the EU institutions should remain unaltered (III) and the EU and
Member States could not be internally bound by an interpretation of EU law given by any other
institution than the CJEU (IV). This part will give an overview of each of the requirements
deemed essential for the preservation of the autonomy of the EU legal order, if and how
accession is likely to have an adverse effect on each of them, and how the DAA tries to
accommodate such issues. Further (in depth) analysis of the DAA will be provided in Part II,
where it will be established on which points the DAA eventually failed to preserve the autonomy
of the EU legal order.
I. The primacy, unity and effectiveness of EU law must be ensured
36.
In relation to human rights, the autonomy principle entails that their protection “must be
ensured within the framework of the structure and objectives of the European Union.”111 It has
been established before that the primacy of EU law is of fundamental importance for its
autonomous nature.112 Autonomy of EU law entails that in areas that are harmonised by the EU
the Member States are governed by EU law, and that those areas are excluded from being
governed by any other law “if EU law so requires.”113 When Member States are implementing EU
These principles are extracted from the case law mentioned in this dissertation in the preceding
chapter. The subdivision applied in this text is used to provide a consistent approach throughout the
different chapters. It should be noted that there is some overlap between the different requirements; they
are not to be seen as completely seperate principles. The problem concerning the CFSP for example could
also be categorised under the first heading (regarding the primacy, unity and effectiveness of EU law) and
the paragraph on the possibility that the ECtHR would have to decide on the division of competences
under EU law (number 57) could also be dealt with under the fourth heading.
111 Opinion of Advocate General Bot, Case C399/11 Stefano Melloni v. Ministerio Fiscal [2013]
ECLI:EU:C:2012:600, para. 107
112 Numbers 19 and 20
113 Opinion 2/13 Accession of the European Union to the European Convention for the Protection of Human
Rights and Fundamental Freedoms [2014] ECLI:EU:C:2014:2454
110
19
law in a field that is fully harmonised, leaving them no discretion, they are bound exclusively by
the relevant provisions of EU law.114 Under such circumstances, they cannot apply their own
national law nor international law if this would lead to not applying EU law. In essence, EU law
sets the maximum rules and as long as the Member States act in compliance with them the
autonomy is preserved.115
37.
In the context of accession to the ECHR, two problems arise in this regard. First, there is
Article 53 of the Charter, interpreted by the CJEU as limiting the Member States in applying
higher standards of fundamental rights protection when this would compromise the level of
protection offered by the Charter, the unity, primacy and effectiveness of EU law.116 On the other
hand there is Article 53 ECHR, which sets the ECHR as the minimum required level of
fundamental rights protection, leaving the High Contracting Parties with the freedom to set
higher standards. If Article 53 ECHR would be used by the Member States to disapply EU law in
order to meet higher national standards of protection, this would interfere with the principle of
primacy of EU law.117 The existence of such a provision therefore calls into question the
autonomy of EU law. Second, according to the principle of mutual trust, underpinning the Area of
Freedom Security and Justice (hereafter AFSJ), the Member States are bound by the (rebuttable)
presumption that the other Member States observed fundamental rights law in a specific case. 118
In their relations within the AFSJ, the Member States are therefore governed by EU law.119 If the
ECHR would require them to check in specific cases whether fundamental rights were observed
by a Member State, this would be at odds with the mutual trust idea and would undermine the
effective application of EU law.120
38.
These two issues will be discussed in Part II, Chapter II. It seems that the drafters of the
DAA either overlooked them, or were convinced that these are matters to be resolved by EU law
and are not of concern to the ECHR system. Either way, the DAA does not contain any provisions
that untangle these issues. Because of this lack of coordination between those aspects of EU law
and the ECHR, the CJEU found that on those elements the DAA undermined the specific
characteristics of EU law and its autonomy.121
L. F.M. Besselink, ‘The parameters of constitutional conflict after Melloni’, (2014) Vol. 39 Nr. 4
European Law Review 549
115 Ibid.
116 Case C399/11 Stefano Melloni v. Ministerio Fiscal [2013] ECLI:EU:C:2013:107, para. 60
117 Opinion 2/13, o.c., para. 189
118 A. Kornezov, ‘The Area of Freedom, Security and Justice in the Light of the EU Accession to the ECHR—
Is the Break-up Inevitable?’ (2013) Vol. 15 Cambridge Yearbook of European Legal Studies 230
119 Opinion 2/13, o.c., para. 192
120 Ibid., para. 194
121 Opinion 2/13, o.c., paras.187-195
114
20
II. The existing competences of the EU should remain unaltered
39.
For the preservation of the autonomy of the EU legal order it is essential that
international agreements to which the EU becomes a party do not contain any hidden Treaty
amendments.122 Because of the autonomy (and self-referential nature) of the EU, the
constitutional documents on which the EU legal order is based can only be altered through the
procedures available under EU law itself. Consequently, the same applies to the accession of the
EU to the ECHR: accession would only be possible if it would not prejudice the provisions laid
down by the Treaties. Contrary to the situation in 1996,123 when the EU did not have the
necessary competence to accede to the ECHR, with the entry into force of the Lisbon Treaty
accession as such now falls under the competences of the EU.124 However, it is necessary to
explore whether accession could lead to a restriction or extension of existing EU competences.
40.
After accession the ECHR would become binding upon the EU, a first question is
therefore whether this would lead to a limitation of the existing competences. The EU would
have to abide by the ECHR, and would possibly be limited in the exercise of its competences to
ensure compliance with the ECHR.125 However, this restriction would only take place with
regards to exercising the competences, it would not lead to any restrictions of the competences
as such. Moreover, even in the exercise of its competences accession should not bring any
ground breaking changes, since the EU considers itself indirectly already bound by the ECHR,
either through the general principles of EU law, or through the corresponding rights in the
Charter.126
41.
Secondly, the question arises whether accession would lead to, or require, an extension
of competences of the EU. Post-accession the EU and all its institutions would have to ensure
that they act in line with the ECHR. If not, the ECtHR could hold them responsible for a violation
of the rights of the ECHR. In such a scenario, the necessary arrangements would have to be made
to make an end to the violation.127 The ECtHR does not impose the required measures to end a
violation on its High Contracting Parties. The EU would have to decide on an internal level how
Article 6(2) TEU: “Such accession shall not affect the Union’s competences as defined in the Treaties”;
Joined cases C-402/05 P and C-415/05 P Yassin Abdullah Kadi and Al Barakaat International Foundation v
Council of the European Union and Commission of the European Communities[2008] ECLI:EU:C:2008:461,
para. 285
123 Opinion 2/94 Accession by the Community to the European Convention for the Protection of Human
Rights and Fundamental Freedoms [1996] ECLI:EU:C:1996:140, para. 35
124 Article 6(2) TEU
125 View of Advocate General Kokott, Opinion 2/13 Accession of the European Union to the European
Convention for the Protection of Human Rights and Fundamental Freedoms [2014] ECLI:EU:C:2014:2475,
para. 40
126 See earlier, numbers 4 and 5
127 Article 46 ECHR
122
21
to deal with a violation, and would consequently resolve the problem within the limits of its own
competence.
42.
Besides being subject to the control of the ECtHR in human rights related issues, after
accession the EU would participate in the control bodies of the ECHR.128 This would include
participation in the meetings of the Parliamentary Assembly of the Council of Europe in the
procedure for the election of judges, and in the meetings of the Committee of Ministers of the
Council of Europe.129 This again does not require an extension of the competences of the EU.
These tasks form an essential part of the ECHR system, and therefore fall under the general
competence to accede to the ECHR as is set out in Article 6(2) TFEU.130
43.
This analysis regarding the influence of accession to the ECHR on the competences of the
EU can be concluded by stating that this aspect of the autonomy of the EU legal order remains
preserved. Accession would not require the EU to act outside its competence, nor would it
restrict the existing competences. In addition, the DAA contains provisions that confirm and
ensure that accession would not bring any changes to the competences of the EU. Article 1(3)
DAA reads that “nothing in the Convention or the protocols thereto shall require the European
Union to perform an act or adopt a measure for which it has no competence under European Union
law.”131 A similar provision can be found in Article 9(1) DAA where certain Articles of other
agreements are listed which the EU after accession would be required to respect, albeit “within
the limits of its competences.” The CJEU did not address the consequences of accession for the
existing competences or the safeguards that the DAA contains. Opinion 2/13 remains silent on
this issue, assumingly because the CJEU did not find any problems in that regard or followed the
elaborate analysis of the Advocate General.132
III. Powers of the Member State and EU institutions should
remain unaltered
44.
A third aspect of the autonomy of the EU legal order is that an international agreement
cannot bring changes to the existing powers of the EU institutions.133 Would accession to the
ECHR alter those powers? The requirement consists out of two parts: first, accession to the
This is confirmed by Article 1(a) of Protocol No. 8 EU
The Articles in the DAA governing these aspects are Article 6 and 7
130 View of Advocate General Kokott, Opinion 2/13, o.c., para. 51
131 Article 1(3) DAA
132 View of Advocate General Kokott, Opinion 2/13, o.c., paras. 33-104; it has been perceived as regrettable
that the CJEU did not address this isse, see A. Lazowski and R. Wessel, ‘When Caveats Turn into Locks:
Opinion 2/13 on Accession of the European Union to the ECHR’ Vol. 16 Issue 1 German Law Journal 186
133 See number 32
128
129
22
ECHR cannot affect the essential character of the powers vested in EU institutions (1), second, it
cannot affect the allocation of powers under EU law (2).
1. The essential character of the powers cannot be affected
45.
The CJEU has expressly stated that it is not excluded that an international agreement
may confer new tasks on the institutions of the EU or the Member States, as long as the essential
characteristics of the relevant institution remain intact.134 For the purpose of this dissertation
only the consequences of accession to the ECHR for the essential characteristics of the CJEU and
the Member State courts will be analysed. Other EU institutions (such as the Commission) and
their essential characteristics are left out of this research.135 The consequences of accession for
the autonomy are linked to the external control that would be carried out by the ECtHR. This
review by a court outside the EU will mainly have an impact on the powers of the judicial
institutions of the EU; the CJEU and the courts of the Member States. Additionally, the CJEU did
not address the consequences of accession for the powers of other EU institutions, leading to the
assumption that it finds no problems in this area.
A. Accession and Article 267 TFEU
46.
In Opinion 1/09 the CJEU underlined the importance of the preliminary ruling procedure
of Article 267 TFEU in the legal order of the EU.136 An essential characteristic of the courts of the
Member States is that they have the possibility (or in certain circumstances are under an
obligation137) under Article 267 TFEU to refer questions concerning EU law to the CJEU for a
preliminary ruling. Depriving them of this possibility would undermine this essential task
conferred to them by EU law.138 At the same time this would affect the CJEU, since it would be
deprived of its power to give preliminary rulings, an essential part of its task as guardian of the
legal order.139 Consequently, the autonomy of the EU legal order would be undermined.
47.
Would accession to the ECHR have an impact on Article 267 TFEU? The ECHR itself does
not hold a threat, however, a few months after the final DAA was adopted the Council of Europe
Opinion 1/92 Draft agreement between the Community, on the one hand, and the countries of the
European Free Trade Association, on the other, relating to the creation of the European Economic Area
[1992] ECLI:EU:C:1992:189, para. 32
135 For an analysis of the consequences of accession for other EU institutions, see View of Advocate
General Kokott, Opinion 2/13, o.c., paras. 143-156
136 Opinion 1/09 Draft Agreement, Creation of a unified patent litigation system [2011]
ECLI:EU:C:2011:123, paras. 83 and 85
137 Article 267, b TFEU
138 Opinion 1/09, o.c., para. 89
139 Ibid.
134
23
opened Protocol No. 16 to the ECHR for signature.140 This Protocol installs a preliminary
reference procedure before the ECtHR, allowing the highest courts and tribunals of the High
Contracting Parties to the ECHR to refer questions relating to the interpretation and application
of the ECHR.141 By making use of this procedure, the Member State courts could bypass the
preliminary reference procedure under EU law. While Protocol No. 16 does not install an
obligation for them to do so, according to the CJEU it undermines the autonomy of the EU legal
order because it does not take into consideration the essential characteristics of the CJEU and
the national courts of the Member States as conferred to them by Article 267 TFEU. 142 The issue
of Protocol No. 16 and the consequences for the autonomy will be dealt with in length in
numbers 154-159.
B. Essential characteristics of the CJEU
48.
In its case law the CJEU points out two of its essential characteristics.143 Any alteration to
one of these two characteristics would undermine the autonomy of the EU legal order, and
would make an international agreement incompatible with EU law.
49.
The first essential characteristic of the CJEU is its exclusive jurisdiction.144 Article 19(1)
TEU confers upon the CJEU the task of ensuring the interpretation and application of EU law in
line with the Treaties. The exclusive jurisdiction of the CJEU is confirmed in Article 344 TFEU,
and the Foto-Frost case law, according to which the CJEU has the monopoly to declare EU law
invalid.145 After accession to the ECHR, the EU would be subject to the external human rights
control of the ECtHR. Would the jurisdiction of the ECtHR interfere with the position of the CJEU,
and would the autonomy of the EU legal order consequently be in danger?
50.
The ECtHR deals with two types of procedures involving alleged violations of the ECHR:
individual applications146 and inter-state complaints147 (after EU accession the latter would be
Protocol No. 16 to the Convention for the Protection of Human Rights and Fundamental Freedoms, 2
October 2013, CETS No. 214
141 Article 1 Protocol No. 16
142 Opinion 2/13, o.c., paras. 196-200
143 I. Govaere, ‘Beware of the Trojan Horse: Dispute Settlement in (Mixed) Agreements and the autonomy
of the EU legal order’ in C. Hillion and P. Koutrakos (eds.) Mixed Agreements Revisited: the EU and its
Member States in the World (Hart Publishing Ltd., Oxford 2010) 194
144 Opinion 1/91, o.c., para. 35
145 Discussion document of the Court of Justice of the European Union on certain aspects of the accession
of the European Union to the European convention for the Protection of Human Rights and Fundamental
Freedoms, 5 May 2010, para.7, <http://curia.europa.eu/jcms/upload/docs/application/pdf/201005/convention_en.pdf> (accessed 26 April 2015); Case 314/85 Foto-Frost v. Hauptzollamt Lübeck-Ost
[1987] ECLI:EU:C:1987:452, para. 17 and 20
146 Article 34 ECHR
147 Article 33 ECHR
140
24
called inter-party complaints, see Article 4 DAA). The competence of the ECtHR only extends to
the interpretation and application of the ECHR.148 Its judgements have a declaratory nature, and
the ECtHR under no circumstances has the power to declare national law (or EU law after
accession) invalid.149 Therefore any fear that this competence of the ECtHR would interfere with
the exclusive jurisdiction of the CJEU to declare provisions of EU law invalid is unfounded.
However, to avoid any risk of limitation of the CJEUs jurisdiction it was deemed necessary that a
procedure was set in place by the DAA to guarantee that the CJEU would in every case have the
opportunity to decide on the compatibility of a provision of EU law with the ECHR before a case
would be determined by the ECtHR.150 To this end, the DAA introduces the prior involvement
procedure, which should be triggered under specific circumstances to ensure review by the CJEU
(Article 3(6) DAA, see numbers 91-95).
51.
On the other hand, whereas there is no risk that the ECtHR would interfere with the
CJEUs monopoly to declare EU law invalid, a risk to the exclusive jurisdiction under Article 344
TFEU can be found in Articles 33 and 55 ECHR. Article 33 ECHR allows the High Contracting
Parties to the ECHR to bring proceedings against each other before the ECtHR for alleged human
rights violations. This possibility goes against Article 344 TFEU, which prohibits the Member
States of the EU to bring their disputes involving EU law before other dispute settlement
mechanisms than the ones provided by the Treaties. Article 55 ECHR similarly provides that the
High Contracting Parties to the ECHR cannot bring cases that concern the interpretation or
application of the ECHR or the protocols thereto before another dispute settlement mechanism
than what is provided under the ECHR. This provision would have been problematic after EU
accession to the ECHR because it would entail that Member States of the EU would violate the
ECHR if they would start a procedure before the CJEU that concerns the interpretation and
application of the ECHR. This would undermine the exclusive jurisdiction of the CJEU. These
issues will be discussed more into detail in numbers 112-121. It can nevertheless be noted that
where the DAA succeeded in resolving the issue of Article 55 ECHR151, it did not do so with
regards to Article 33 ECHR.152
Article 32 ECHR
This is confirmed in para. 62 of the Draft Explanatory Report: “The ECtHR only rules on whether there
has been a violation of the Convention and not on the validity of an act of a High Contracting Party or of the
legal provisions underlying the act or omission that was the subject of the complaint.”
150 Discussion document of the Court of Justice of the European Union on certain aspects of the accession
of the European Union to the European convention for the Protection of Human Rights and Fundamental
Freedoms, 5 May 2010, para.9, <http://curia.europa.eu/jcms/upload/docs/application/pdf/201005/convention_en.pdf> (accessed 26 April 2015)
151 Article 5 DAA provides that proceedings before the CJEU are not considered as means of dispute
settlement as described by Article 55 ECHR
152 Opinion 2/13, o.c., para. 212
148
149
25
52.
The second essential characteristic of the CJEU is that its rulings are binding.153 On an
internal EU level, accession to the ECHR would not bring any changes. The existing procedures
before the CJEU under Articles 258-267 TFEU would remain untouched. On the other hand in the
course of the prior involvement procedure mentioned earlier the assessment of the CJEU would
not be binding upon the ECtHR.154 Numbers 107 and 108 will deal with this specific issue, and
explain why this is not at odds with the autonomy principle.
C. Jurisdiction of the ECtHR over the CFSP
53.
The ECHR does not allow reservations of a general nature (Article 57(1) ECHR),
therefore accession would bring all EU measures, acts and omissions under the external control
of the ECtHR, including the fields over which the CJEU has no jurisdiction. Problematic in this
regard is the Common Foreign and Security Policy, an area of EU law where the jurisdiction of
the CJEU does not stretch out over all of its aspects.155 If the EU would accede to the ECHR, the
ECtHR would have the power to review CFSP acts, measures and omissions on their
compatibility with the ECHR, even in cases where the CJEU would not have this power. This
situation creates a discrepancy between the jurisdiction of the CJEU and of the ECtHR. However,
the CFSP is an area where the CJEU cannot claim to have exclusive jurisdiction, consequently it
could be argued that the jurisdiction of the ECtHR could not interfere with the powers of the
CJEU, and that the autonomy would therefore remain preserved.
54.
Nevertheless, it can already be noted that the CJEU thought differently. In Opinion 2/13
the CJEU found it incompatible with the autonomy of the EU legal order that the Court in
Strasbourg would have jurisdiction over the CFSP in human rights matters when the Court in
Luxembourg would not.156 Numbers 130-141 deal with the special position of the CFSP and the
consequences for the autonomy of the EU legal order in the context of accession to the ECHR.
2. The allocation of powers cannot be affected
55.
The division of competences between the Member States and the EU is governed by EU
law and it is the task of the CJEU to watch over this allocation of powers. The autonomy of EU
law would be jeopardised if a dispute settlement body from outside the EU would have the
Opinion 1/91 Draft agreement between the Community, on the one hand, and the countries of the
European Free Trade Association, on the other, relating to the creation of the European Economic Area
[1991] ECLI:EU:C:1991:490, para. 61
154 Para. 68 Draft Explanatory Report
155 Article 24(1) para. 1 TEU
156 Opinion 2/13, o.c., paras. 249-258
153
26
power to rule on the division of competences as defined by EU law.157 In the context of accession
to the ECHR, the ECtHR consequently cannot have this power.
56.
The DAA takes into account the division of competences between the EU and its Member
States. Article 1(3) first of all states that the EU can only be held responsible for violations of the
ECHR by “acts, measures or omissions of its institutions, bodies offices or agencies, or of persons
acting on their behalf”. The same applies to the Member States, even when they are
implementing EU law, however in that case the EU could be held jointly responsible, as will be
set out in the next part.158 These provisions therefore ensure that both the EU and the Member
States can only be held responsible for violations of the ECHR within the field of their own
competence. They will not be required to remove a violation of the ECHR that has been created
outside of their competence under EU law.
57.
On the other hand these provisions do not ensure that the ECtHR would not be required
to rule on the division of competences between the EU and Member States. In cases involving EU
law individual applicants would have to decide which party to bring before the ECtHR; the EU or
a Member State. The ECtHR would then have to decide whether the correct respondent was
chosen, and to do so it would have to look into EU law to determine who was responsible for the
alleged violation of the ECHR.159 This is a problematic situation in the light of Opinion 1/91,
according to which the autonomy of EU law is endangered when an international dispute
settlement body has to decide who is the responsible party in proceedings before it; the EU, the
Member States, or both of them together.160 The drafters of the DAA were aware of this issue and
tried to avoid it by proposing a co-respondent mechanism.161 By applying this mechanism, the
ECtHR would hold the EU and Member States jointly responsible, and would not have to find the
responsible party under EU law. The characteristics of this mechanism, its assessment and the
final position of the CJEU in Opinion 2/13 will be discussed in Part II.
IV. The ECtHR cannot interpret EU law in an internally binding
fashion
58.
The aim of this prerequisite is to protect the autonomy of EU law by not allowing that the
application of EU law within its own legal order would be affected by decisions of international
Opinion 1/91, o.c. para. 35
Article 1(4) DAA
159 159 J.P. Jacqué, ‘The accession of the European Union to the European Convention on Human rights and
fundamental freedoms’ (2011) 48 CML Rev 1012
160 Opinion 1/91, o.c., paras. 34-36; T. Lock, ‘Walking on a tightrope: the draft ECHR accession agreement
and the autonomy of the EU legal order’ (2011) 48 CML Rev 1029
161 Article 3 DAA
157
158
27
dispute settlement bodies.162 In the context of accession to the ECHR the question thus arises
whether the ECtHR would determine EU law in an internally binding manner. First of all it
should be recalled that post-accession, the decisions of the ECtHR on EU acts, measures and
omissions would be binding upon the EU and all its institutions.163 Second, it should be kept in
mind that the ECtHR would only decide on the compatibility of those acts, measures or
omissions with the ECHR, and would in principle not turn to an in depth scrutiny of EU law
itself.164 However, when the ECtHR interprets and applies the ECHR in particular cases, it is also
confronted with domestic law, which after accession would also encompass EU law. Deciding
whether domestic law violates the ECHR evidently requires the ECtHR to take a closer look at it.
Articles 6, 7 and 13 ECHR for example oblige the ECtHR to examine the judicial protection
offered under domestic law, while under Articles 8-12 ECHR the ECtHR has to determine
whether an interference with the rights enshrined in those Articles was prescribed by law.165
However, the ECtHR has in previous case law declared that “it is primarily for the national
authorities, notably the courts, to interpret and apply domestic law.”166 Therefore the task of the
CJEU to interpret EU law would be left untouched, and the ECtHR would merely decide whether
or not a contested act, omission or provision of EU law violates the ECHR.
V. Interim conclusion
59.
Following the analysis of case law of the CJEU provided in this part, it can be concluded
that accession to the ECHR holds several risks for the autonomy of the EU legal order. First,
certain provisions of the ECHR might be invoked by the Member States as a justification to
disapply EU law, which goes against the principle of primacy of EU law.167 Second, accession
could have adverse effects on the preliminary reference procedure of Article 267 TFEU and the
exclusive jurisdiction of the CJEU under Article 344 TFEU.168 Third, the allocation of powers
between the EU and the Member States could be affected.169 The following part will analyse how
the DAA deals (or fails to deal) with these risks.
I. Govaere, ‘Beware of the Trojan Horse: Dispute Settlement in (Mixed) Agreements and the autonomy
of the EU legal order’ in C. Hillion and P. Koutrakos (eds.) Mixed Agreements Revisited: the EU and its
Member States in the World (Hart Publishing Ltd. Oxford, 2010) 196
163 Draft Explanatory Report, para. 26
164 This is confirmed in the Draft Explanatory Report, see para. 62
165 P. Gragl, The accession of the European Union to the European Convention on Human Rights (Hart
Publishing, Oxford 2013) 116-121
166 Huvig v. France (Application no. 11105/84) (1990) ECHR A176-B, para. 28
167 Number 37
168 Numbers 47 and 51
169 Number 57
162
28
Part II. The Draft Accession
Agreement
INTRODUCTION
60.
The negotiations of the necessary accession instruments to achieve the EUs accession to
the ECHR started in 2010. Eight working meetings were held between the European Commission
and the CDDH-UE (an informal group under the Council of Europe Steering Committee for
Human Rights – CDDH).170 On 14 October 2011 the CDDH presented the negotiated Draft legal
instruments on the accession of the European Union to the European Convention on Human
Rights.171 The EU proposed several amendments to this draft to ensure that the accession
instruments were better adapted to the specific characteristics of the EU.172 Negotiations on the
basis of the draft instruments of October 2011 were taken up again in an ad hoc group consisting
out of all Council of Europe member states and the Commission (‘47+1’).173 On 10 June 2013 a
final report was submitted to the CDDH with the final version of the draft accession instruments
annexed to it.174
61.
The accession instruments consist out of a Draft Revised Agreement on the Accession of
the European Union to the Convention for the Protection of Human Rights and Fundamental
Freedoms (Appendix I, hereinafter the ‘Draft Accession Agreement’ or ‘DAA’), a Draft Declaration
by the European Union (Appendix II), a Draft Rule to be added to the Rules of the Committee of
Ministers of the Council of Europe (Appendix III), a Draft model of memorandum of
understanding between the EU and a non-EU Member State (Appendix IV) and a Draft
Final report to the CDDH (47+1(2013)008rev2), 10 June 2013, paras. 1-3
<http://www.coe.int/t/dghl/standardsetting/hrpolicy/Accession/Meeting_reports/47_1(2013)008rev2_
EN.pdf> (accessed 26 April 2015)
171 Steering Committee for Human Rights (CDDH) (CDDH(2011)009), 14 October 2011, Report to the
Committee of Ministers on the elaboration of legal instruments for the accession of the European Union to
the European Convention on Human Rights,
<http://www.coe.int/t/dghl/standardsetting/hrpolicy/Accession/Meeting_reports/CDDH_2011_009_en.
pdf> (accessed 26 April 2015)
172 First Negotiation Meeting between the CDDH and the European Commission on the Accession of the
European Union to the European Convention on Human Rights (47+1(2012)R01) 21 June 2012, Meeting
report, para. 2,
<http://www.coe.int/t/dghl/standardsetting/hrpolicy/Accession/Meeting_reports/47_1(2012)R01Erev
2.pdf> (accessed 26 April 2015)
173 For an extensive analysis of the negotiation process, see R. Böcker, ‘Gaten dichten, toetreding van de
Europese Unie tot het EVRM’ (2013) 24 Nederlands Juristenblad 1560
174 Final report to the CDDH (47+1(2013)008rev2), 10 June 2013,
<http://www.coe.int/t/dghl/standardsetting/hrpolicy/Accession/Meeting_reports/47_1(2013)008rev2_
EN.pdf>(accessed 26 April 2015)
170
29
Explanatory Report to the Draft Accession Agreement (Appendix V, ‘the Draft Explanatory
Report’). These instruments form a ‘package’ and are all necessary for accession to take place.175
62.
By means of the DAA the EU would accede to the ECHR, to Protocol No. 1 ECHR and
Protocol No. 6 ECHR.176 Accession to other protocols to the ECHR in the future is not ruled out,
but it would require the adoption of additional accession instruments.177 Since not all protocols
have been ratified by all Member States, accession of the EU to all of them could have led to a
situation where Member States would (when implementing EU law) be bound by those
protocols they chose not to be part of.178 Following the concern expressed in Protocol No. 8 EU
that the situation of the Member States in relation to the ECHR or the protocols thereto cannot
be affected by accession, the EU therefore only accedes to the two protocols that have been
ratified by all Member States.179
63.
The DAA would become an integral part of the ECHR and provides the necessary changes
to the ECHR system to enable the participation of the EU.180 It contains several interpretative
clauses of the ECHR, arrangements for the participation of the EU in the control bodies of the
Convention and adaptations to the ECHR system to allow for the special nature of the EU. The
following chapters will analyse how the DAA deals with the risks for the autonomy of the EU
legal order. An assessment will be made of the proposed agreement in the light of the case law of
the CJEU and its final position in Opinion 2/13, elaborating on which points it fails to preserve
the autonomy. In addition, a look will be cast into the future: what adaptations can be made to
the DAA in order to meet the requirements of the CJEU in Opinion 2/13? Chapter I addresses the
solutions that are provided by the DAA for some of the autonomy-related problems. Chapter II
addresses the problematic issues that were not expressly dealt with in the DAA.
Ibid., para. 9
Article 1(1) DAA; Protocol to the ECHR, 20 March 1952, CETS No. 9 (concerning: the protection of
property, right to education, right to free elections); Protocol No. 6 to the ECHR concerning the abolition of
death penalty, 28 April 1983, CETS No. 114
177 Draft Explanatory Report para. 17
178 J.P. Jacqué, ‘The accession of the European Union to the European Convention on Human rights and
fundamental freedoms’ (2011) 48 CML Rev 1003
179 Article 2 Protocol No. 8 EU
180 Article 1(2) DAA; Draft Explanatory Report, para. 3
175
176
30
CHAPTER I: PROPOSED SOLUTIONS
64.
In its preamble the DAA expressly refers to the EU as a legal order with its own
characteristics, not to be mistaken for a state. In Part I the two new mechanisms that are
introduced in the ECHR system to respect the autonomy of the EU were already briefly
mentioned: the co-respondent mechanism (Article 3 DAA) and the procedure for prior
involvement of the CJEU (Article 3(6) DAA). This chapter analyses these newly proposed
procedures and the solution that is provided for the conflict between the possibility of launching
inter-state cases before the ECtHR and the exclusive jurisdiction of the CJEU in Article 344 TFEU.
I. Co-respondent mechanism
1. Necessity of a new procedure
65.
If the EU would accede to the ECHR, an individual believing to be confronted with a
violation of the ECHR by an EU act, omission or measure could acquire review from the ECtHR
on its compatibility with the ECHR. The applicant would have to start proceedings against the
responsible High Contracting Party before the ECtHR, which after accession would also include
the EU. The difficulty that occurs is that there are different actors under EU law, on one hand the
EU institutions, agencies and bodies, on the other hand the Member States that have to
implement EU law. A legal act could be “enacted by one High Contracting Party and implemented
by another”181 and it would often be difficult for the applicant to distinguish which party – an EU
institution or a Member State – would be responsible for an alleged ECHR violation.182 EU
secondary law is for example issued by the EU itself but often implemented by the Member
States.183 EU primary law (i.e. the TEU, TFEU and instruments with the same legal value) on the
other hand is adopted by the Member States, leaving the power to amend it only to them. If an
application before the ECtHR would concern a violation of the ECHR by for example a provision
of the Treaties it would therefore be preferable to direct it against the Member States, since only
they would eventually be able to bring an end to a violation amending the Treaty.184 The co-
Draft Explanatory report, para. 38
During the negotiation process the concern was voiced that it might be difficult for applicants to
understand when it would be possible to direct their application against both the EU and one or more
Member States. It is not unlikely that they would have unsufficient knowledge of EU law to distinguish the
responsible party: NHRI Joint Submission to the CDDH-UE of 3 December 2010, ‘NGOs’ perspective on the
EU accession to the ECHR: the prosposed co-respondent procedure and consultation with civil society’, 12,<http://www.coe.int/t/dghl/standardsetting/hrpolicy/Accession/Working_documents/Joint_submissi
on.pdf> (accessed 26 April 2015)
183 Articles 288-292 TFEU
184 T. Lock, ‘End of an epic? The draft agreement on the EU’s accession to the ECHR’ (2012) 31 Yearbook of
European Law 169
181
182
31
respondent mechanism ensures that if in such a situation the application is directed only against
the EU, the Member States can be involved in the procedure before the ECtHR as well.
66.
Article 3 DAA amends Article 36 ECHR, introducing the co-respondent mechanism. The
text of the current Article 36 ECHR allows third parties to intervene in a pending procedure
before the ECtHR. This possibility only entails the right to submit written observations and to
take part in the hearings; an intervening third party is in no way bound by the judgement of the
ECtHR or treated as a respondent to the case. The DAA does not change the current mechanism
of third party intervention, but adds an additional paragraph to the existing Article 36 ECHR,
introducing a mechanism especially adapted to the specific nature of the EU. Article 3(7) DAA
provides that the ECtHR would hold a co-respondent jointly responsible, together with the initial
respondent appointed by the applicant.
67.
The co-respondent mechanism only applies to EU situations and serves multiple
purposes. It is meant to unburden the applicant by relieving him from the assessment of the
division of competences under EU law.185 Article 3(1)b DAA also provides that the admissibility
of an individual application will be assessed without taking into account the co-respondent. One
of the admissibility criteria under the ECHR requires an applicant to exhaust all available
domestic remedies.186 Article 3(1)b DAA therefore entails that this exhaustion would only need
to happen once: in the legal order of the respondent. Additionally, such a mechanism was
deemed necessary in the interest of proper administration of justice.187
68.
Most importantly for the research question of this dissertation, the co-respondent
mechanism was designed to accommodate the concerns regarding possible interference with the
autonomy of the EU legal order. Article 1(b) of Protocol No. 8 EU states that a mechanism should
be installed to ensure that applications would be addressed to the right party, the EU or one or
more Member States. As established earlier, in Opinion 1/91 one of the issues that did not pass
the scrutiny of the CJEU was that the envisaged EEA Court would have to decide who the
respondent in a procedure brought before it would be: the EU, a Member State, or both of them
Steering Committee for Human Rights (CDDH) (DG-II(2002)006), 28 June 2002, ‘Study of technical and
legal issues of a possible EC/EU accession to the European Convention on Human Rights’, para.
61,<http://www.coe.int/t/dghl/standardsetting/hrpolicy/Accession/Working_documents/Study_accessi
on_UE_2002_en.pdf> (accessed 26 April 2015); T. Lock ‘EU accession to the ECHR: implications for
judicial review in Strasbourg’ (2010) Vol. 35 European Law Review 780-781, 784
186 Article 35(1) ECHR
187 European Parliament Resolution (2009/2241 (INI)) of 19 May 2010 on the institutional aspects of the
accession of the European Union to the European Convention for the Protection of Human Rights and
Fundamental Freedoms [2011] OJ CE161/72, no. 12
185
32
together.188 Without the co-respondent mechanism introduced by the DAA, the same problem
would exist after accession in proceedings before the ECtHR. In cases concerning EU acts,
measures or omissions where the applicant would direct his application against either the EU or
a Member State, the ECtHR would have to decide whether the correct defendant was chosen. In
doing so, it would have to look into the division of competence between the EU and its Member
States to decide on the responsible party under EU law.189 That way, the ECtHR would decide on
the allocation of powers and turn to an interpretation of EU law, an activity reserved only for the
CJEU.190
2. Situations to which the co-respondent mechanism would apply
69.
The DAA provides for three situations in which the co-respondent mechanism could be
triggered. First, there is the situation where an application would be directed against one or
more Member States, allowing the EU to become a co-respondent when the conditions of Article
3(2) DAA are met (A). Second there is the possibility that an application would be directed
against the EU, leaving the Member States with the option of becoming co-respondent under the
conditions of Article 3(3) DAA (B). Third, it would be possible that an application from the outset
would be directed against both the EU and one or more Member States, leading to a procedure in
which they are both treated as respondents. In such a scenario, Article 3(4) DAA makes it
possible to change the status of one of the respondents to co-respondent when the conditions of
paragraph 2 or 3 of Article 3 are fulfilled. The Draft Explanatory Report refers to the situation
where one of the defendants (the EU or one or more Member States) is the one that provided the
legal basis for the action or omission towards the applicant that lead to the alleged ECHR
violation, and the other defendant is the one that acted or omitted to act.191 Without the corespondent mechanism, the application against the defendant that provided the legal basis
would be declared inadmissible ratione personae.192 The advantage of changing a status from
respondent to co-respondent for the applicant would be that the admissibility of the case would
be considered regardless of the co-respondent.193 The applicant thus would not be required to
Opinion 1/91 Draft agreement between the Community, on the one hand, and the countries of the
European Free Trade Association, on the other, relating to the creation of the European Economic Area
[1991] ECLI:EU:C:1991:490, para. 34-36, see number 30
189 J.P. Jacqué, ‘The accession of the European Union to the European Convention on Human rights and
fundamental freedoms’ (2011) 48 CML Rev 1012
190 See also number 30 and 32
191 Draft Explanatory Report, para. 43
192 J. Kralova, ‘Comments on the Draft Accession Agreement on the accession of the European Union to the
Convention for the Protection of Human Rights and Fundamental Freedoms’ (2011) 2 Czech Yearbook of
International Law 132
193 Article 3(1) b DAA and para. 40 of the Draft Explanatory Report
188
33
exhaust domestic remedies in the legal order of each (co-)respondent, since admissibility would
not be assessed for all (co-)respondents separately.194
70.
If the co-respondent mechanism would be triggered and a violation of the ECHR would
be found, the ECtHR would accordingly hold the EU and one or more Member States jointly
responsible.195 However, it should be kept in mind that in all three scenarios it would still be
necessary to attribute final responsibility to one of the parties to be able to enforce the ruling of
the ECtHR.196 To ensure effective execution of the judgements of the ECtHR, a procedure would
be required on the level of the EU. Keeping in mind the autonomy of EU law, this would have to
be dealt with on an internal EU level, preferably by the CJEU, since it would require a close look
into the division of competences between the EU and the Member States.197
A. The EU as co-respondent
71.
Article 3(2) DAA envisages the situation where an application is directed only against
one or more Member States, allowing the EU to join as a co-respondent when a question on the
compatibility of a provision of EU law with the ECHR arises, “notably where that violation could
have been avoided only by disregarding an obligation under European Union law.”198 This would
for example be the case when an applicant challenges a national implementing measure adopted
by a Member State, where it could consequently either be the underlying EU law that violates the
ECHR, or the implementing measure itself.199 Even without formal accession to the ECHR the
ECtHR has dealt with this type of issues. With regards to EU secondary law, the outcome of this
ECtHR case law differs depending on the amount of discretion enjoyed by the Member State
implementing the contested provision.200
T. Lock, ‘End of an epic? The draft agreement on the EU’s accession to the ECHR’ (2012) 31 Yearbook of
European Law 167
195 Article 3(7) DAA
196 See on this subject: P. Gragl, The accession of the European Union to the European Convention on Human
Rights (Hart Publishing, Oxford 2013) 168-170
197 See on this issue Council of the EU document (10569/10), 2 June 2010, ‘Draft Council Decision
authorising the Commission to negotiate the Accession Agreement of the European Union to the European
Convention for the protection of Human Rights and Fundamental Freedoms (ECHR) – Co-respondent
mechanism (Paragraph 10 of the Negotiating directives)’,
<http://register.consilium.europa.eu/doc/srv?l=EN&f=ST%2010569%202010%20INIT> (accessed 26
april 2015)
198 Article 3(2) DAA
199 X. Groussot, T. Lock and L. Pech, ‘EU accession to the European Convention on Human Rights: a legal
assessment of the Draft Accession Agreement of 14 october 2011’ (2011) Founation Robert Schuman
European issues No. 218, <http://www.robert-schuman.eu/en/doc/questions-d-europe/qe-218-en.pdf>
(accessed 26 April 2015)
200 See also supra, number 10
194
34
72.
The conditions of Article 3(2) DAA firstly correspond to a setting like the Bosphorus
case.201 In this case the ECtHR was confronted with the question whether Ireland could be held
responsible for an alleged violation of the ECHR, even though if it had only acted to comply with
an EU Regulation. Starting from 1991 the United Nations Security Council adopted several
sanctions against former Yugoslavia that were implemented by the EU. Bosphorus Airways was
a Turkish company leasing two aircrafts from Yugoslav airlines. In 1993 one of those aircrafts
was seized on the territory of Ireland on the basis of an EC Regulation implementing the UN
sanctions. National proceedings followed, and the case was referred to the Court in Luxembourg
for a preliminary ruling. The Luxembourg Court, confirming that the right to property and
freedom of trade are fundamental rights in the EU, ruled that the restriction of those rights
arising from the taking of the aircraft was justified because of the importance of the aim pursued
by the Regulation.202
73.
After the judgement of the Irish Supreme Court subsequent to the preliminary ruling of
the CJEU a complaint was lodged before the ECtHR. The ECtHR found that the Irish authorities
had no discretion and simply acted to comply with their obligations under the Regulation.203 It
continued by establishing a presumption that state action taken in compliance with obligations
under an international organisation is justified:
“as long as the relevant organisation is considered to protect fundamental rights, as
regards both the substantive guarantees offered and the mechanisms controlling their
observance, in a manner which can be considered at least equivalent to that for which
the Convention provides”204
74.
The presumption can be rebutted if in the particular circumstances of a case the
protection of fundamental rights is considered to be manifestly deficient.205 Accordingly, the
ECtHR made an observation of the protection of fundamental rights and judicial review system
in the EU, after which it decided that the latter provided a level of protection equivalent to that
of the ECHR system. Ireland had therefore acted in line with the ECHR.206 If after accession a
Bosphorus Have Yollari Turzim Ve Ticaret Anonim Sirketi v. Ireland (App. No. 45036/98) ECHR 2005-VI
Case C-84/95 Bosphorus Hava Yollari Turizm ve Ticaret AS v Minister for Transport, Energy and
Communications and others [1996] ECLI:EU:C:1996:312, paras. 21-25
203 Bosphorus Have Yollari Turzim Ve Ticaret Anonim Sirketi v. Ireland (App. No. 45036/98) ECHR 2005-VI,
para. 148
204 Ibid., para. 155, emphasis added.
205 Ibid., para. 156
206 A related question is what would happen to the Bosphorus presumption post-accession. Neither one of
the draft accession instruments addresses this issue, therefore it would be for the ECtHR to decide
whether it would continue to apply this presumption. The Boshporus presumption has been criticised
before and it seems that after accession there would be no need for it anymore. It has been argued that it
leads to a “low, abstract standard of human rights review” (see S. Douglas-Scott, ‘The Court of Justice of the
European Union and the European Court of Human Rights after Lisbon’ in S. De Vries, U. Bermitz. and S.
Weatherill (eds.) The protection of Fundamental Rights in the EU after Lisbon (Hart Publishing Ltd., Oxford
201
202
35
similar situation would arise, the EU could join the proceedings as a co-respondent and defend
the contested EU law provision.207
75.
The use of the word ‘notably’ further implies that the co-respondent mechanism is also
open to situations where EU law leaves some freedom of choice for the Member States on how to
implement it. The ECtHR in the past has reviewed Member State action if the provisions of EU
law from which it derived left the Member States with a certain amount of discretion. This was
the case for example in Cantoni208 and MSS209. Both times, the ECtHR held the involved Member
States responsible on their own account.210 The co-respondent mechanism would be an
improvement to such situations, since it would allow the EU to join proceedings, defend the
secondary law at issue and be held responsible together with the Member State(s).211
76.
The above examples refer to situations that call into question the compatibility of EU
secondary law with the ECHR. It makes sense that in those circumstances the EU would be part
of the procedure, since it is the EU that issues secondary law. The Member States are only the
ones that are implementing it, and cannot amend or repeal these EU law instruments.212 After a
violation of the ECHR would be found by the ECtHR, the EU would be able to remove it. However,
Article 3(2) DAA makes no distinction between secondary and primary law. As a consequence,
even in a procedure that for example involves a provision of the Treaties, the EU could be held
jointly responsible as a co-respondent for a violation of the ECHR. This regardless of the fact that
2013) 155). Additionally, it has been questioned why the EU should benefit from this presumption of
equivalence, given that none of the Contracting Parties to the ECHR receive the same treatment, however
high their standard of protection might be (P. Van Elsuwege, ‘New Challenges for Pluarilst Adjudication
after Lisbon’ (2012) Vol. 30/2 Netherlands Quarterly of Human Rights 207). Furthermore, it is argued
that the Bosphorus presumption is not a prerequisite to preserve the autonomy of the EU legal order (see
X. Groussot, T. Lock and L. Pech, ‘EU accession to the European Convention on Human Rights: a legal
assessment of the Draft Accession Agreement of 14 october 2011’ (2011) Founation Robert Schuman
European issues No. 218, 9 <http://www.robert-schuman.eu/en/doc/questions-d-europe/qe-218en.pdf> (accessed 26 April 2015). Lastly it could be argued that it would disrupt the equal treatment of
the EU and the (other) High Contracting Parties to the ECHR. Article 7 of the Draft Explanatory Report
states that as a general principle, the EU should accede on an equal footing with the existing parties.
Allowing a lower degree of control in cases related to EU law by applying the Bosphorus presumption
would interfere with this principle and would at the same time contradict one of the key purposes of
accession, which is to close the remaining gaps in human rights protection in the EU legal order.
207 F. Benoit-Rohmer ‘l’Adhésion de l’Union à la Convention européenne des droits de l’homme’ (2011) No.
184 Journal de droit européen 287
208 Cantoni v. France (App. No. 17862/91) ECHR 1996-IV
209 M.S.S. v. Belgium and Greece (App. No. 30696/09) ECHR 2011
210 S. Douglas-Scott, ‘The Court of Justice of the European Union and the European Court of Human Rights
after Lisbon’ in S. De Vries, U. Bermitz. and S. Weatherill (eds.) The protection of Fundamental Rights in the
EU after Lisbon (Hart Publishing Ltd., Oxford 2013) 156
211 F. Benoit-Rohmer ‘l’Adhésion de l’Union à la Convention européenne des droits de l’homme’ (2011) No.
184 Journal de droit européen 287
212 See Article 288 TFEU for the different types of secondary legislation; P. Craig and G. De Búrca, EU law,
text, cases, and materials (Oxford University Press, New York 2011) Chapter 4, 103-120
36
to end such a violation a Treaty amendment would be required, which is up to the Member
States and not the EU itself.213
B. The Member State(s) as co-respondent(s)
77.
Article 3(3) DAA refers to a situation where EU primary law allegedly is not in line with
the ECHR. If in such a case an individual directs his or her application only against the EU, the
Member States could become co-respondents in the procedure. That way the ECtHR does not
decide on the division of powers between the Member States and the EU, and the ‘correct’
addressee (a Member State) of the application is joined in the procedure. Making the Member
States co-respondents in such cases is to be preferred over holding only the EU responsible if a
violation of the ECHR is found, since only the Member States could by amending the contested
primary law provisions bring an end to an ECHR violation.
78.
This provision is a confirmation of the reasoning already applied in the case law of the
ECtHR. In the Matthews214 case the ECtHR confirmed that it did not have jurisdiction to decide on
the compatibility of primary law with the ECHR as such, but stated that:
“The Convention does not exclude the transfer of competences to international
organisations provided that Convention rights continue to be “secured”. Member
States’ responsibility therefore continues even after such a transfer.”215
79.
According to the ECtHR, because all Member States signed the founding Treaties, they
are responsible for EU primary law and its effects on their own account.216 They were the once
that created it, therefore in such a situation the Member States cannot outrun their
responsibility by claiming a violation of the ECHR stems from EU law. For the application of the
ECHR it makes no difference whether the contested provisions are of a domestic or EU nature.217
80.
In the DAA this tradition is reaffirmed. When an application initially would only be
directed towards the EU, it would be possible for the Member States to join the procedure, if a
question rises on the compatibility of EU primary law with the ECHR. The DAA does not
expressly determine whether under such circumstances it would be necessary for all the
Member States to be joined as co-respondents. This would make sense, since if a violation of the
ECHR is found in EU primary law, all Member States would have to cooperate to amend the
contested provision. However, having all EU Member States filing requests and answers would
T. Lock, ‘End of an epic? The draft agreement on the EU’s accession to the ECHR’ (2012) 31 Yearbook of
European Law 169
214 Matthews v. UK (App. No. 24833/94) ECHR 1999-I
215 Ibid., para. 32, emphasis added.
216 Ibid., para. 33
217 Ibid., para. 34
213
37
unduly delay the procedure and make it unnecessarily inefficient.218 The Member State that
would join as co-respondent could represent the other Member States, and if a violation of the
ECHR would indeed be found, this Member State would have to execute the judgment
pronounced by the ECtHR.219 This should be sufficient incentive to amend the provision of
primary law violating the ECHR.
3. Assessment
81.
The co-respondent mechanism was introduced to avoid having the ECtHR ruling on the
division of competences between the EU and the Member States when deciding on the
responsible party in an individual application. The wording of Article 3 DAA is carefully chosen
to avoid interference with the autonomy of the EU legal order. Article 3(2) and 3(3) DAA state
that the EU or a Member State could join a procedure as co-respondent when it appears that a
provision of EU law is at stake, meaning that the ECtHR would only conduct a prima facie
research on the necessity of including a potential co-respondent. The same follows from Article
3(5) DAA, which reads that the ECtHR, when deciding on a request to become a co-respondent,
only assesses whether it is plausible that the conditions of Article 3(2) and (3) DAA are met. At
first glance it therefore seems that the drafters kept in mind the specific characteristics of the EU
legal order. However, a closer look at the provisions of the DAA and Draft Explanatory Report
reveals that there are aspects that were bound to be found problematic in the light of protecting
the autonomy of the EU legal order. The CJEU found three elements of the co-respondent
mechanism incompatible with the Treaties: the plausibility review to be carried out by the
ECtHR under Article 3(5) DAA (B), the possibility of holding only one party responsible in
exceptional cases (C) and the possibility that a Member State would be held jointly responsible
with the EU for a violation of an ECHR provision for which it has made a reservation. This last
issue does not relate to a question of autonomy of EU law, and will therefore not be mentioned
further on in this text.220 On the other hand one aspect of the co-respondent mechanism that was
T. Lock, ‘End of an epic? The draft agreement on the EU’s accession to the ECHR’ (2012) 31 Yearbook of
European Law 171
219 Ibid.
220 Holding the Member States jointly responsible with the EU when they join proceedings as corespondents could lead to the situation where a Member State is held responsible for a violation of a
provision of the ECHR or the protocols thereto even though it has made a reservation for the provision at
issue (Opinion 2/13 Accession of the European Union to the European Convention for the Protection of
Human Rights and Fundamental Freedoms [2014] ECLI:EU:C:2014:2454, para. 227, View of Advocate
General Kokott, Opinion 2/13 Accession of the European Union to the European Convention for the
Protection of Human Rights and Fundamental Freedoms [2014] ECLI:EU:C:2014:2475, paras. 264-265).
This is not in line with Article 2 of Protocol No. 8 EU, which states that the DAA cannot affect the situation
of the Member States in relation to the ECHR (Opinion 2/13, o.c., para. 228).
218
38
not found incompatible with the Treaties by the CJEU will be discussed for the sake of a
complete analysis (A).
A. The voluntary nature of the co-respondent mechanism
82.
A weakness of the co-respondent mechanism had been envisaged in legal doctrine in the
fact that the DAA makes the participation as a co-respondent subject to the choice of the EU or
the Member States.221 Becoming a co-respondent is only possible on a voluntary basis: a party
can request to become a co-respondent222 or can be invited by the ECtHR, in which case the
party can only become a co-respondent if it accepts the invitation.223 To address this issue on the
side of the EU a Draft Declaration by the EU was included in the draft accession instruments,
stating that the EU will ensure that it will become a co-respondent in proceedings before the
ECtHR when all the conditions for the mechanism to be triggered are met.224 Yet there is no such
declaration on the side of the Member States, and the risk might still exist that the EU or a
Member State refuses to become a co-respondent. As a consequence, there would be only one
defendant in the case before the ECtHR. If that defendant claimed not to be responsible, the
ECtHR would have to determine whether that would be true, and in that way decide on the
division of competences under EU law.
83.
Advocate General Kokott stated that making the mechanism compulsory in the DAA
would undermine the autonomy of EU law, since it would take the possibility of assessing the
conditions of Article 3(2) and (3) DAA away from the parties at issue.225 At the same time
however, the effective execution of judgments of the ECtHR would be affected if the parties
would have the possibility of not requesting to become a co-respondent or not accepting an
invitation to do so.226 When a party would refuse to become co-respondent this could lead to a
situation where the party that has the power to amend the provision of EU law that violates the
ECHR would not be bound by the judgment as it would not have joined proceedings as a corespondent.227 However, according to the Advocate General, in cases where the EU should join as
Draft Explanatory report, para. 53: no Party to the ECHR can be forced to become a party to a case it
was not included in the original application. See T. Lock, ‘End of an epic? The draft agreement on the EU’s
accession to the ECHR’ (2012) 31 Yearbook of European Law 172-173
222 Draft Explanatory Report, para. 53
223 Ibid.
224 Final report to the CDDH (47+1(2013)008rev2), 10 June 2013,
<http://www.coe.int/t/dghl/standardsetting/hrpolicy/Accession/Meeting_reports/47_1(2013)008rev2_
EN.pdf> (accessed 26 April 2015), Appendix II, Draft Declaration by the European Union to be made at the
time of signature of the Accession Agreement, a.
225 View of Advocate General Kokott, Opinion 2/13, o.c.., para. 218
226 Ibid., para. 217
227 Ibid., para. 217
221
39
co-respondent this problem is addressed sufficiently by the Draft Declaration (Appendix II to the
DAA).228 In cases where a Member State should become a co-respondent the duty of sincere
cooperation of Article 4(3) TEU would require it to do so.229 Additionally, the Advocate General
stresses the importance of informing the EU and its Member States on pending cases before the
ECtHR that possibly meet the criteria set out in Article 3(2) or (3) DAA.230 It would be the task of
the ECtHR to ensure that this information is provided directly; neither the possible invitation by
the ECtHR to join as a co-respondent under the DAA, neither the circulation of information
concerning pending cases between the EU and the Member States following the duty of sincere
cooperation would suffice to that end.231 The CJEU confirmed the non-voluntary character of the
co-respondent mechanism and pointed out that it is necessary to ensure that the decision
whether the conditions triggering the mechanism are met is left to the EU and the Member
States.232 This brings us to the first issue with the co-respondent mechanism regarding the
autonomy of EU law that was detected by the CJEU.
B. Plausibility that the conditions of the co-respondent mechanism are
met
84.
The CJEU found it incompatible with the autonomy of EU law that under certain
circumstances the ECtHR would have the final say in whether or not a party becomes as corespondent.233 As set out earlier, the EU or a Member State can become co-respondents in
accordance with Article 3(5) DAA either by request or by accepting an invitation from the
ECtHR. Para. 55 of the Draft Explanatory Report states that in the first scenario (where a party
would file a request) the ECtHR would decide whether or not to admit the party as corespondent. The same paragraph further provides that the ECtHR “will limit itself to assessing
whether the reasons stated by the High Contracting Party (or Parties) making the request are
plausible in the light of the criteria set out in Article 3, paragraphs 2 or 3 [of the DAA]”234. The
reasons given by the parties would be that the alleged violation in the case at issue calls into
question the compatibility of EU law (primary or secondary, depending on the situation) with
the ECHR. Allowing the ECtHR to assess this question presupposes it to assess EU law, and thus
Ibid.., para. 219
Ibid., para. 220
230 Ibid., para. 222
231 Ibid., paras. 226-228
232 Opinion 2/13, o.c., paras. 220-221
233 Opinion 2/13, o.c., paras. 223-225. Advocate General Kokott came to the same conclusion, see View of
Advocate General Kokott, Opinion 2/13, o.c., para. 230
234 Emphasis added
228
229
40
interferes with the autonomy principle.235 Advocate General Kokott points out that this
provision is problematic because it would remove the decision whether or not to become a corespondent from the hands of the EU and the Member States.236
85.
Consequently, under Article 3(5) DAA two situations can occur and only one of them is
problematic in the light of the autonomy of EU law. In the first scenario, a party requests to
become a co-respondent and the ECtHR conducts an assessment of the plausibility that the
conditions of Article 3(2) or (3) DAA are met. This assessment to be carried out by the ECtHR
would require ascertaining the division of competences between the Member States and the EU,
therefore being at odds with the autonomy principle.237 In the second scenario, the ECtHR
invites the EU or Member State to become co-respondent after coming to the conclusion that the
necessary conditions could be met. Even though in both scenario’s the ECtHR assesses the
conditions of Article 3(2) and (3) DAA, the second one does not interfere with the autonomy,
since the final assessment of division of competences is left to the party (the EU or a Member
State) itself.238 The DAA should therefore ensure that the final assessment of the conditions of
the co-respondent mechanism should always be left to the EU and the Member States. Lock
suggested that this assessment could be left to the original respondent, which then would decide
whether or not to invite the relevant party to become co-respondent.239
C. The exception on joint responsibility
86.
The outcome of a procedure with a co-respondent would be that the respondent(s) and
co-respondent(s) would be held jointly responsible for a violation of the ECHR.240 Though the
DAA in providing for this procedure tries to avoid interference with the autonomy of EU law,
Article 3(7) DAA further states that when the respondent and co-respondent give reasons for it,
the ECtHR could hold either one of them separately responsible. The Draft Explanatory Report
adds to this that “apportioning responsibility separately to the respondent and the corespondent(s) on any other basis [than the reasons given by the parties] would entail the risk that
the Court would assess the distribution of competences between the EU and its Member States.”241
Opinion 2/13, o.c., para. 221
View of Advocate General Kokott, Opinion 2/13, o.c., para. 232
237 Opinion 2/13,o.c., paras. 223-224
238 Ibid., para. 222
239 T. Lock, ‘Walking on a tightrope: the draft ECHR accession agreement and the autonomy of the EU legal
order’ (2011) 48 CML Rev 1045.
240 Article 3(7) DAA
241 Draft Explanatory Report, para. 62
235
236
41
The version of the DAA of 2011 did not contain this provision:242 the exception on the general
rule of Article 3 was requested by the UK and France and followed by most Member States
during the negotiation process.243 The adoption of this provision creates a gap that threatens the
autonomy of the EU legal order, since it would allow the ECtHR to interpret the division of
competences between the EU and its Member States when deciding on who to hold responsible
for the violation of the ECHR. Since this was exactly the situation the drafters of the DAA were
trying to avoid by adopting a co-respondent mechanism, it seems rather strange that this
provision was added to the final version of Article 3 DAA.
87.
Not surprisingly, the second aspect of the co-respondent mechanism not to pass the
scrutiny of the CJEU in Opinion 2/13 was the wording of Article 3(7) DAA. Both Advocate General
Kokott and the CJEU found this provision incompatible with the autonomy principle.244 Even
though Article 3(7) DAA refers to the reasons to be given by the parties, this still entails that the
ECtHR would pronounce itself on the division of competences between the EU and its Member
States and would thus interpret EU law in a binding fashion.245 Only the CJEU can decide whether
the reasons given by the parties are in line with EU law, even if they have an agreement on the
division of responsibility.246 Giving this power to the ECtHR would interfere with the jurisdiction
of the CJEU and undermine the autonomy of EU law. It is not clear why this exception was
deemed necessary by the Member States, but it seems that solving this problem should not cause
any difficulties if the DAA would be renegotiated. Removing the provision that allows the ECtHR
to hold either the EU or a Member State responsible should suffice.
4. Interim conclusion
88.
The co-respondent mechanism was designed to avoid interference with the autonomy of
the EU legal order. More specifically, it should ensure that the ECtHR would not have to
pronounce itself on the division of competences under EU law by deciding which party before it
– the EU or one or more Member States – would be responsible for a violation of the ECHR. The
See Draft legal instruments on the accession of the European Union to the European Convention on
Human Rights, final version (CDDH-UE(2011)16) 19 July 2011,
<http://www.coe.int/t/dghl/standardsetting/hrpolicy/Accession/Working_documents/CDDHUE_2011_16_final_en.pdf> (accessed 26 April 2015)
243 Council of the European Union document (16385/11) 8 November 2011, ‘Accession of the European
Union to the European Convention for the protection of Human Rights and Fundamental Freedoms
(ECHR): - State of play’, 5 <http://www.statewatch.org/news/2011/nov/eu-council-echr-accession16385-11.pdf> (accessed 26 April 2015)
244 View of Advocate General Kokott, Opinion 2/13, o.c., paras. 175-179 and Opinion 2/13, o.c., paras. 229235
245 View of Advocate General Kokott, Opinion 2/13, para. 179 and Opinion 2/13, o.c., para. 232
246 Opinion 2/13, o.c., para. 234
242
42
drafters of the DAA tried to mould the mechanism to the specific needs of the EU but were not
able to satisfy the requirements set by the CJEU.
89.
With regards to the co-respondent mechanism, the impact on the autonomy of the EU
legal order is manifested in two ways. First, Article 3(5) DAA allows the ECtHR to assess whether
it is plausible that the criteria of Article 3(2) and (3) DAA are met, before it accepts (or rejects) a
request of a party to become co-respondent.247 Since this would require it to assess the division
of competences under EU law, this interferes with the autonomy principle. To avoid this
interference, the final assessment whether those conditions are met preferably should be placed
in the hands of the parties (the EU and Member States) themselves. Second, under certain
circumstances the ECtHR could still decide to hold only the EU or a Member State responsible,
even when the conditions of Article 3 DAA are met.248 This would require the ECtHR to decide on
the division of competences under EU law, and consequently interfere with the autonomy
principle. To avoid this interference, Article 3(7) DAA should be amended, and the provision
allowing this interference should be deleted.
90.
The reasoning of the CJEU in Opinion 2/13 with regards to the co-respondent mechanism
confirms its settled case law. Because of the autonomous nature of EU law the EU institutions
and Member States cannot be bound internally by an interpretation of EU law provided by a
dispute settlement body outside of the EU legal order.249 As confirmed by Opinion 2/13, such a
binding interpretation would take place if a dispute settlement body would have to assess the
division of competences under EU law to decide whether the EU or a Member State is the
responsible party in a pending procedure. Even if a dispute settlement body would assess the
division of competences solely on the basis of reasons submitted by the EU or Member States
this would not be sufficient to preserve the autonomy of the EU legal order.
See numbers 84 and 85
See numbers 86 and 87
249 Opinion 1/91, o.c.
247
248
43
II. Prior involvement of the CJEU in cases in which the EU is a corespondent
1. Necessity of a new procedure before the ECtHR
91.
The purpose of the prior involvement procedure proposed by the DAA is twofold: on one
hand it is needed to ensure that the principle of subsidiarity under the ECHR system is
observed.250 On the other hand, it was necessary to meet the request of the EU not to interfere
with the autonomy of the EU legal order.251 The principle of subsidiarity of the ECHR primarily
relies upon the state parties to the ECHR and their domestic courts to ensure the application of
the ECHR.252 Applied to the EU, this would require effective scrutiny by the national courts of the
Member States and the CJEU before an application could be admissible before the ECtHR.253 As
will be explained later on, under EU law the situation could occur that proceedings would be
started before the ECtHR while the CJEU (as the domestic court under EU law) would not have
had the chance to address the issue first.254 This would undermine the principle of subsidiarity,
but at the same time would call into question the position of the CJEU. The courts of the Member
States can consider the validity of provisions of EU law, but only the CJEU can declare them
invalid.255 This task is of particular importance when it comes to reviewing the compatibility of
EU law with fundamental rights.256 The CJEU itself has stated that in order to preserve this
essential characteristic, it would be necessary to install a procedure that allows the CJEU to give
a ruling on a case brought to the ECtHR if it did not have the chance to do so before.257
92.
To understand the necessity of the prior involvement procedure, the question needs to
be answered in which situations a case could find its way to Strasbourg without having been
Joint communication from presidents Costa and Skouris of 24 January 2011, number 2, fifth paragraph,
<http://curia.europa.eu/jcms/upload/docs/application/pdf/2011-02/cedh_cjue_english.pdf> (accessed
26 April 2015)
251 Ibid.
252 D.J. Harris, M. O’Boyle, E.P. Bates and C.M. Buckley, Law of the European Convention on Human Rights
(Oxford University Press, Oxford 2014) 26
253 Discussion document of the Court of Justice of the European Union on certain aspects of the accession
of the European Union to the European convention for the Protection of Human Rights and Fundamental
Freedoms, 5 May 2010, para. 7 <http://curia.europa.eu/jcms/upload/docs/application/pdf/201005/convention_en.pdf> (accessed 26 April 2015)
254 See number 93
255 See Case 314/85 Foto-Frost v. Hauptzollamt Lübeck-Ost [1987] ECLI:EU:C:1987:452, paras. 13-20
256 Joined cases C-402/05 P and C-415/05 P Yassin Abdullah Kadi and Al Barakaat International
Foundation v Council of the European Union and Commission of the European Communities [2008]
ECLI:EU:C:2008:461, para. 304
257 Discussion document of the Court of Justice of the european Union on certain aspects of the accession
of the European Union to the European convention for the Protection of Human Rights and Fundamental
Freedoms <http://curia.europa.eu/jcms/upload/docs/application/pdf/2010-05/convention_en.pdf>,
paras. 8-9.
250
44
reviewed by the CJEU first. Article 35(1) ECHR requires an individual applicant to exhaust the
available domestic remedies for his or her application to be admissible. If the EU would accede
to the ECHR, the same principle would apply to applications that involve EU acts, measures or
omissions. If an individual application would be directed against the EU, the applicant would
have to exhaust the remedies available within the EU legal order, i.e. the action for annulment
before the General Court (Article 263 TFEU). Although it would not be considered a domestic
remedy under Article 35(1) ECHR (see infra number 93), an applicant would often also have the
possibility of involving the CJEU through a preliminary ruling in a procedure before a Member
State court. Under these circumstances the CJEU usually would have the opportunity to give a
ruling before a case would go to Strasbourg and no problem in terms of autonomy would occur.
93.
If on the other hand an application would be directed against a Member State but would
call into question the compatibility of a provision of EU law with the ECHR, the question arises
what could be considered a domestic remedy. The applicant would have to use the available
procedures before the national courts of the relevant Member State. When a question of
interpretation or validity of EU law emerges during a national procedure, the Member State
courts can refer this question to the CJEU for a preliminary ruling (according to Article 267
TFEU). However, only Member State courts in last instance can be obliged to refer a case to the
CJEU.258 Furthermore, there is no such obligation when the question arising under EU law is not
relevant for them to decide the case, when there is no reasonable doubt on the interpretation of
the relevant EU law provision or when an identical or similar question has already been
answered by the CJEU.259 The situation could therefore occur that an application is brought
before the ECtHR that involves EU law, but in which the CJEU has not yet had the opportunity to
make an assessment. This would be the case when a court of a Member State would have
decided the case without referring to the CJEU for a preliminary ruling. Since an individual in a
pending national procedure can only suggest a reference to the CJEU but the eventual decision is
left to the discretion of the national court, it was considered that the preliminary reference
procedure could not be treated as a domestic remedy that needs to be exhausted.260 If a case
would then be brought before the ECtHR and would be found admissible, this court would have
to decide on the compatibility of certain provisions of EU law with the ECHR, while the CJEU
Article 267, para. 3 TFEU
Case 283/81 CILFIT v. Ministry of Health [1982] ECLI:EU:C:1982:335, paras. 13 and 16
260 Draft Explanatory report para. 65; Joint communication from presidents Costa and Skouris of 24
January 2011, o.c., number 2, fourth paragraph; Draft additional elements prepared by the Secretariat on
Procedural means guaranteeing the prior involvement of the Court of Justice of the EU in cases in which it
has not been able to pronounce on compatibility of an EU act with fundamental rights (CDDHUE(2011)02) 17 January 2011, 2,
<http://www.coe.int/t/dghl/standardsetting/hrpolicy/Accession/Working_documents/CDDHUE_2011_02_en.pdf> (accessed 26 April 2015)
258
259
45
would not have had the chance to assess the situation itself. This would undermine the CJEUs
jurisdiction to declare EU law invalid, an essential characteristic of this court.261
94.
During the drafting process different options were discussed on how to construct the
prior involvement procedure before the ECtHR. Possibilities ranged between having informal
consultations between the ECtHR and the CJEU, having the CJEU involved by pronouncing an
opinion during the procedure as part of the party submissions to be made by the EU as corespondent and suspending the procedure before the ECtHR to make it possible for the CJEU to
give a ruling on the matter. 262 A last proposal relied upon an internal EU procedure that would
enable the CJEU to assess the compatibility of the contested provision of EU law with
fundamental rights during the pending procedure before the ECtHR.263 It was the last option that
formed the basis for the current Article 3(6) of the DAA:
“In proceedings to which the European Union is a co-respondent, if the Court of Justice
of the European Union has not yet assessed the compatibility with the rights at issue
defined in the Convention or in the protocols to which the European Union has acceded
of the provision of European Union law as under paragraph 2 of this article, sufficient
time shall be afforded for the Court of Justice of the European Union to make such an
assessment”
95.
The prior involvement procedure thus would only apply to situations where the EU joins
proceedings as a co-respondent.264 As set out earlier, in situations where the EU is the
respondent, the CJEU usually would already have ruled on the matter, either through the
procedure of Article 263 TFEU, or through a preliminary ruling under Article 267 TFEU. When
on the other hand an application would be directed against a Member State and the EU would
join as a co-respondent under Article 3(2) DAA this would mean that a question of compatibility
of a provision of EU law with the ECHR rises. In that case, since the domestic remedies only need
to be exhausted in the legal order of the respondent, and the EU would be the co-respondent, it
would not be necessary for the applicant to exhaust the remedies available under EU law.265 For
the case to be admissible the applicant would have to exhaust the remedies of the respondent
Member State, however, as set out above, it would be possible that the CJEU would not be
involved in the course of a national procedure.
Opinion 1/91, o.c.; Douglas-Scott, ‘The Court of Justice of the European Union and the European Court
of Human Rights after Lisbon’ in S. De Vries, U. Bermitz. and S. Weatherill (eds.) The protection of
Fundamental Rights in the EU after Lisbon (Hart Publishing Ltd., Oxford 2013), 169.
262 Draft additional elements prepared by the Secretariat on Procedural means guaranteeing the prior
involvement of the Court of Justice of the EU in cases in which it has not been able to pronounce on
compatibility of an EU act with fundamental rights, o.c., 3-4
263 Ibid.
264 Draft Explanatory report, para. 66.
265 Article 3(1)b DAA and para. 40 of the Draft Explanatory Report
261
46
2. Necessity of a procedure on the level of the EU
96.
The decision on the procedural aspects of the prior involvement of the CJEU is left to deal
with on an internal EU level. A declaration of the Council annexed to the decision authorising the
negotiation of the necessary accession instruments stated that the Council would adopt “legally
binding rules to the extent permitted by the Treaties, on the prior involvement of the Court of
Justice of the European Union.”266 It would be essential that the procedure to be introduced to
facilitate involvement by the CJEU would not lead to a hidden Treaty amendment. As the CJEU
confirmed in Opinion 1/91, an international agreement can confer new tasks on the EU
institutions, as long as their essential characteristics remain intact.267 In this context, this entails
that the prior involvement might require a new procedure for the CJEU, but cannot alter its
essential characteristics. The only reference in the draft accession instruments to the internal EU
procedure to be set up can be found in para. 69 of the Draft Explanatory Report. It is requested
that, for the procedure before the ECtHR not be excessively delayed, the ruling of the CJEU
should be delivered quickly: the Draft Explanatory Report refers to the existing accelerated
procedure before the CJEU.268
97.
It is not clear how the prior involvement procedure would function at the level of the
EU.269 In a Working Document of the European Commission some guidelines for the internal EU
procedure were set out.270 The principles mentioned by the Commission are meant to
accommodate the specific characteristics of the EU legal order as well as the features of the
procedure before the ECtHR. According to the Commission, the procedure should be based on
the same general features as those of the existing preliminary ruling procedure of Article 267
TFEU.271 The CJEU would have to decide on the compatibility of an EU act with the fundamental
Working document of the European Commission (DS 1930/10) 10 January 2011, ‘Previous
involvement of the Court of Justice in the context of the accession of the European Union to the European
Convention for the protection of Human Rights and Fundamental Freedoms’, para. 3
<https://www.eerstekamer.nl/eu/documenteu/ds_1930/10_previous_involvement_of_the/f=/vimuezria
wbg.pdf> (accessed 26 April 2015)
267 Opinion 1/91, o.c., para. 32
268 Article 107 of the Rules of Procedure of the CJEU provides for an urgent preliminary ruling procedure
(Rules of Procedure of the Court of Justice [2012] OJ L 265)
269 For the discussions on an internal EU level, see Council of the European Union document (10568/10) 2
June 2010, ‘Draft Council Decision authorising the Commission to negotiate the Accession Agreement of
the European Union to the European Convention for the protection of Human Rights and Fundamental
Freedoms (ECHR) – Involvement of ECJ regarding the compatibility of legal acts of the Union with
fundamental rights (Paragraph 11 of the Negotiating directives)’,
<http://register.consilium.europa.eu/doc/srv?l=EN&f=ST%2010568%202010%20INIT> (accessed 26
April 2015)
270 Working document of the European Commission (DS 1930/10) 10 January 2011, o.c.
271 Ibid., paras. 4 and 11
266
47
right protected under EU law that corresponds to an equivalent right under the ECHR.272 The
decision of the CJEU would be given in the form of a judgment or an order.273 The instigator of
the involvement procedure could be the Commission or the respondent Member State and the
EU legal instrument that would lay down the conditions for the prior involvement procedure
could be the Council decision that concludes the eventual accession agreement.274 In legal
doctrine the suggestion has also been made to let the CJEU review the case under the power that
was vested in it by Article 263(2) TFEU.275 In such a scenario, it would again be the Commission
that would be responsible for starting up the procedure.
98.
According to Advocate General Kokott, the prior involvement procedure would not
require new competences for the CJEU outside its essential tasks.276 The Advocate General refers
to Opinion 1/92 as a reminder of the position that an international agreement might confer new
competences on EU institutions, as long as it does not change the essence of the existing
competences.277 She then continues in stating that the prior involvement procedure would fall
under the scope of the existing competences of the CJEU under Article 19(1) and (3) TEU, and
that it would even help “to ensure that the Court is better able to fulfil the task that has always
been entrusted to it.”278 The Advocate General further suggests that the adoption of procedural
rules on the internal EU level should happen through the ordinary legislative procedure, and not
through the Council’s decision on approval of the DAA.279
Ibid., para. 4.
Ibid., para. 8.
274 Ibid., para. 6; A procedure started by the Commission was also suggested by judge Timmermans during
a hearing organised by the AFCO Commission of the European Parliament: C. Timmermans, ‘L'adhésion de
l'Union Européenne à la Convention européenne des Droits de l'homme’, Audition organisée par la
Commission des affaires constitutionnelles, 18 mars 2010, para. 8,
<http://www.europarl.europa.eu/document/activities/cont/201003/20100324ATT71235/20100324AT
T71235EN.pdf> (accessed 26 April 2015)
275 T. Lock, ‘Walking on a tightrope: the draft ECHR accession agreement and the autonomy of the EU legal
order’ (2011) 48 CML Rev 1049
276 View of Advocate General Kokott, Opinion 2/13, o.c., para. 66; See also Baratta, who argued that a prior
involvement procedure would remain within the powers of the CJEU as they are delimited by the Treaties:
R. Baratta, ‘Accession of the EU to the ECHR: the rationale for the ECJ’s prior involvement mechanism’
(2013) 50 CML Rev 1329-1330
277 Ibid., para. 65; Opinion 1/92 Draft agreement between the Community, on the one hand, and the
countries of the European Free Trade Association, on the other, relating to the creation of the European
Economic Area [1992] ECLI:EU:C:1992:189, para. 32
278 View of Advocate General Kokott, Opinion 2/13, o.c., para. 57; According to Article 19 TEU the CJEU
“shall ensure that in the interpretation and application of the Treaties the law is observed” (Article 19(1)
TEU), give preliminary rulings and rule in the procedures provided for in the Treaties (Article 19(3) TEU).
279 View of Advocate General Kokott, Opinion 2/13, o.c., paras. 74-76: That way, the procedural rules
would be on the same level as the provisions of the Statute of the Court of Justice.
272
273
48
3. Assessment
99.
The criticism has been voiced that there would be no need for a prior involvement
mechanism if the judicial system of the EU legal order would function properly: it has been
argued that a situation where the CJEU would not have had the opportunity to assess a provision
of EU law on its compatibility with fundamental rights before it goes to the ECtHR would be
caused by a gap under EU law.280 Indeed, it seems that it might be recommendable to revise the
position of the national courts when it comes to the preliminary reference procedure under EU
law. Obliging the Member State courts in last instance to refer a case to the CJEU by means of
Article 267 TFEU whenever a question arises on the compatibility of EU law with the ECHR
could be sufficient.281 That way, the position of the CJEU is preserved and the matter can be
resolved internally, without any need for the construction of a new procedure. If a preliminary
reference would be made mandatory in those cases, it would be considered as a domestic
remedy to be exhausted under Article 35(1) ECHR and the CJEU would have the opportunity of
pronouncing itself on the matter before it goes to the ECtHR. Additionally, keeping in mind the
crucial task of Member State courts and the preliminary reference procedure as a key element in
the EU legal order,282 it would seem a viable option for the EU to strengthen its own judiciary
system if (or rather when) in the future accession will be reconsidered. The CJEU requested the
prior involvement procedure to protect its monopoly in interpreting and invalidating EU law.283
However, as set out in numbers 50 and 58, the ECtHR would not have the power to interpret or
invalidate EU law. As a consequence, the prior involvement procedure is not indispensable for
the CJEU to maintain its position.284
100.
Nevertheless, the CJEU itself made clear that a prior involvement mechanism should be
put in place, and the drafters of the DAA followed this request. Unfortunately, but not
D. Ritleng, ‘The accession of the European Union to the European Convention on Human Rights and
Fundamental Freedoms A Threat to the Specific Characteristics of the European Union and Union Law?’,
Working Paper 2012:1 Uppsala Faculty of Law, 14-15,
<http://www.jur.uu.se/LinkClick.aspx?fileticket=NQjcsCLVLr8%3D&tabid=5502&language=sv-SE>
(accessed 4 March 2015); T. Lock, ‘End of an epic? The draft agreement on the EU’s accession to the ECHR’
(2012) 31 Yearbook of European Law, 191
281 Jacqué writes about the possibility of having (or returning to) a more strict interpretation of Article
267 TFEU than what has been applied by the CJEU in its CILFIT case law, which softened the obligation for
the Member State courts in last instance to make a preliminary reference to the CJEU (Case 283/81 CILFIT
v. Ministry of Health [1982] ECLI:EU:C:1982:335). See J.P. Jacqué, ‘The accession of the European Union to
the European Convention on Human rights and fundamental freedoms’ (2011) 48 CML Rev 1019
282 Opinion 1/09 Draft Agreement, Creation of a unified patent litigation system [2011]
ECLI:EU:C:2011:123, para. 83
283 Discussion document of the Court of Justice of the European Union on certain aspects of the accession
of the European Union to the European convention for the Protection of Human Rights and Fundamental
Freedoms, o.c., para. 8.
284 T. Lock, ‘Walking on a tightrope: the draft ECHR accession agreement and the autonomy of the EU legal
order’ (2011) 48 CML Rev 1047
280
49
surprisingly, the DAA’s prior involvement procedure did not pass the scrutiny of the CJEU.
Opinion 2/13 uncovers 2 aspects of the procedure that are in conflict with the autonomy of the
EU legal order: the limitation of the assessment to be carried out by the CJEU to a validity check
when it comes to EU secondary law (A), and the provisions that do not ensure that the final
decision whether or not to involve the CJEU would not be left to the ECtHR (B). A last aspect that
will be discussed here is the non-binding nature of the CJEUs rulings for the ECtHR. Even though
neither the CJEU nor the Advocate General found this incompatible with the Treaties, it is related
to the autonomy concept and therefore requires a closer look (C).
A. The scope of the assessment by the CJEU
101.
The DAA provides that the prior involvement procedure would enable the CJEU to give
an assessment of the compatibility of the provisions of EU law at issue with the ECHR.285 The
Draft Explanatory Report elaborates on the scope of this assessment. Paragraphs 65 and 66 of
the Draft Explanatory Report state that the CJEU will have the chance on ruling on the validity of
provisions of EU secondary law, and on the interpretation of EU primary law. This current
wording of the DAA and its Draft Explanatory Report has been introduced in the draft version of
8 January 2013.286 The corresponding provisions on the substantive control by the CJEU in
previous drafts of the DAA only referred to the assessment of compatibility of the relevant EU
law provisions with the ECHR, without elaborating on the scope of this assessment.287 During the
negotiations France had proposed a version of Article 3(6) DAA that referred both to the
assessment of compatibility with the ECHR and interpretation of EU law.288 However, this
proposal was not followed and the current wording was requested by the EU in the end to clarify
Article 3(6) DAA
Fourth Negotiation Meeting between the CDDH ad hoc negotiation group and the European
Commission on the Accession of the European Union to the European Convention on Human Rights, Draft
Explanatory report to the Agreement on the Accession of the European Union to the Convention for the
Protection of Human Rights and Fundamental Freedoms (47+1(2013)002) 8 January 2013, Meeting
report, para. 57-58
<http://www.coe.int/t/dghl/standardsetting/hrpolicy/Accession/Meeting_reports/CDDHUE_2010_17_RAP_en.pdf> (accessed 26 April 2015)
287 Draft legal instruments on the accession of the European Union to the European Convention on Human
Rights, final version (CDDH-UE(2011)16) 19 July 2011,
<http://www.coe.int/t/dghl/standardsetting/hrpolicy/Accession/Working_documents/CDDHUE_2011_16_final_en.pdf> (accessed 26 April 2015); para. 57-58 Draft Explanatory Report and Article
3(6) Draft Accession Agreement
288 Friends of Presidency (FREMP) working document (DS 1675/11) 4 November 2011, ‘Accession of the
European Union to the ECHR – Working document from the Presidency’, 7
<http://www.statewatch.org/news/2011/nov/eu-council-echr-accession-fop-ds-1675-11.pdf>
285
286
50
the different powers of the CJEU, depending on whether it has to deal with a provision of
primary or secondary law.289
102.
Recalling that the CJEU does not have jurisdiction to decide on the validity of provisions
of primary law, no problems occur where the DAA refers only to the interpretation of those
provisions during the prior involvement procedure.290 However, regarding secondary law the
DAA only mentions assessment of validity, while the (exclusive) task of the CJEU not only
extends to assessing the validity, but also encompasses its interpretation.291 The DAA fails to
take this task of the CJEU into consideration, and therefore denies one of its essential
characteristics. An international agreement can to a certain extent create new powers for EU
institutions, but cannot change the essence of their task.292 Therefore on this point the DAA is
not able to preserve the autonomy of the EU legal order.
103.
The CJEU addressed this matter in its Opinion 2/13 in which it declared the provisions at
issue incompatible with the autonomy of the EU legal order.293 The CJEU specifically refers to the
situation where a provision of EU secondary law would be subject to several possible
interpretations. In that case, only the CJEU should have the power to determine the correct
interpretation. Without such intervention of the CJEU, the ECtHR would have to choose one of
the possible interpretations when it would have to decide on the compatibility of the relevant
provision with the ECHR. 294 Advocate General Kokott came to the same conclusion and required
clarification that under Article 3(6) DAA the CJEU would not only have the power to invalidate
secondary law, but also to provide an interpretation.295 The DAA should therefore provide that
the assessment to be carried out by the CJEU encompasses both interpretation and validity
control when it comes to secondary law.
B. The decision to start the prior involvement procedure
104.
Article 3(6) DAA does not provide who would have the power to instigate the prior
involvement procedure. Deciding on whether or not to involve the CJEU would require an
assessment of its case law. The responsible party or institution would have to ascertain whether
Second Negotiation Meeting between the CDDH ad hoc negotiation group and the European
Commission on the Accession of the European Union to the European Convention on Human Rights
(47+1(2012)R02) 19 September 2012, Meeting report, para. 10
<http://www.coe.int/t/dghl/standardsetting/hrpolicy/Accession/Meeting_reports/47_1(2012)R02final_
EN.pdf> (accessed 26 April 2015)
290 Article 267(1)a TFEU
291 Article 267(1)b TFEU
292 Opinion 1/92, o.c., para. 32
293 Opinion 2/13, o.c., paras. 242-248
294 Ibid., para. 246
295 View of Advocate General Kokott, Opinion 2/13, o.c., paras. 130-131 and 135
289
51
or not the CJEU already assessed the provisions of EU law at issue on their compatibility with the
ECHR. The relevant provisions in the DAA do not elaborate on this issue: the Draft Explanatory
Report only states that “it was considered desirable that an internal EU procedure be put in place”
after which it names some of the requirements that should be met for the EU procedure to be in
line with the ECHR system.296
105.
The CJEU points out that the assessment whether the CJEU has pronounced itself in its
previous case law on the legal issue that is at stake in a procedure pending before the ECtHR –
and consequently whether it is necessary to trigger the prior involvement procedure – cannot be
left to the ECtHR, since that would require an interpretation of EU law.297 This assessment
should be left to the competent EU institution, and the decision whether or not to involve the
CJEU in a pending case should be binding on the ECtHR.298 Since the DAA does not guarantee
this, the CJEU finds the provisions of Article 3(6) incompatible with the autonomy of the EU legal
order. Advocate General Kokott takes the same point of view as the CJEU, but mentions that the
ECtHR would have to turn to an interpretation of EU law (and thus interfere with the exclusive
jurisdiction of the CJEU) only in the (unlikely) event that it would not be clear from the case law
of the CJEU whether or not it has pronounced itself on the compatibility with the ECHR of the EU
law provision at issue.299 As a solution, the Advocate General suggests the triggering of the prior
involvement procedure in any case where there is doubt on the previous case law of the CJEU
regarding the relation between the provisions of EU law at issue and the fundamental rights
enshrined in the ECHR.300
106.
The arguments put forth by the CJEU and the Advocate General are in line with the
principle that the autonomy of the EU legal order would be affected if the ECtHR would have to
interpret EU law. Possible solutions would be the proposal of the Advocate General or to simply
include a provision in Article 3(6) DAA or in the Draft Explanatory Report which states explicitly
that the decision whether or not the prior involvement procedure is necessary will not be left to
the ECtHR. It seems that depending on the type of procedure that would be used on the EU level,
this problem could be solved further by the EU itself. If for example the Commission would be
the responsible institution to trigger the prior involvement procedure, it could inform the CJEU
of the cases in which the EU is a co-respondent and the CJEU has not been involved before. The
CJEU could then itself decide whether it has already dealt with the issue at hand in previous case
law or not.
Draft Explanatory Report, para. 66, emphasis added.
Opinion 2/13, o.c., para. 239
298 Ibid., para. 238
299 View of Advocate General Kokott, Opinion 2/13, o.c., paras. 182-83
300 Ibid., para. 184
296
297
52
C. Non-binding nature of the assessment by the CJEU
107.
For the sake of completeness, the non-binding nature of the rulings to be given by the
CJEU in the course of a prior involvement procedure is discussed. An interesting element in the
light of the autonomy concept can be found in paragraph 68 of the Draft Explanatory Report.
This provision states that the assessment of the CJEU as part of the prior involvement procedure
would not be binding upon the ECtHR. As set out in number 31, it is vital for the preservation of
the autonomy of the EU legal order that the essential characteristics of EU institutions remain
untouched.301 From Opinion 1/91 became clear that such an essential characteristic of the CJEU
is that its rulings are binding.302 In that opinion the CJEU rejected the proposed EEA Agreement,
partly because there was no guarantee that the rulings to be given by the CJEU in preliminary
proceedings would be binding upon the courts that requested them. Therefore based on the case
law of the CJEU one could assume that the statement in the Draft Explanatory Report that the
outcome of the prior involvement of the CJEU would not bind the ECtHR holds a threat to the
autonomy of the EU legal order. The internal procedure that should be set up under EU law to
facilitate the prior involvement of the CJEU should take into consideration that the ruling to be
given by the CJEU in such circumstances would not be binding on the ECtHR.
108.
Of course, if the rulings of the CJEU would be binding on the ECtHR, this would
undermine the whole purpose of accession to the ECHR. Accession is deemed necessary to have
external human rights control over the EU. Having the ECtHR bound by rulings of the CJEU on
the compatibility of EU law provisions with the ECHR would leave the final word on the
interpretation of the ECHR in EU law related cases to the CJEU. Therefore, as the CJEU confirms,
the interpretation to be given by the ECtHR of the ECHR would be binding on the EU, while the
same would not apply to an interpretation of the ECHR by the CJEU for the ECtHR.303 This is a
necessary consequence of the external control that would be created by accession, and as has
previously been recognised by the CJEU in Opinion 1/76 and 1/91.304 It should also be kept in
mind that an interpretation given by the CJEU of the ECHR would not be binding on the ECtHR,
but an interpretation of EU law (including the Charter) would be.305
Opinion 1/00 Proposed agreement between the European Community and non-Member States on the
establishment of a European Common Aviation Area [2002] ECLI:EU:C:2002:231, para. 12
302 Opinion 1/91, o.c. para. 61.
303 Opinion 2/13, o.c., para.185
304 Opinion 1/76 Draft Agreement establishing a European laying-up fund for inland waterway vessels
[1977] ECLI:EU:C:1977:63; Opinion 1/91, o.c.
305 Opinion 2/13, o.c., para.186; During the negotiations France had suggested to include in Article 3(6)
DAA that the provisions of that Article would not affect the powers of the ECtHR “in matters relating to the
interpretation of the Convention.” Such a provision might have been more clear. See Friends of Presidency
(FREMP) working document (DS 1675/11) 4 November 2011, ‘Accession of the European Union to the
301
53
4. Interim conclusion
109.
The prior involvement procedure was introduced by Article 3(6) DAA to avoid a
situation in which the ECtHR would decide on the compatibility of EU law provisions with the
ECHR and the CJEU was not able to assess the issue before. The prior involvement procedure
would give the CJEU the chance to perform this assessment after all. It was deemed necessary by
the CJEU itself to include such a procedure to ensure the preservation of the autonomy of the EU
legal order, and more specifically to guard the tasks of the CJEU when it comes to interpreting
and invalidating EU law. Just like the co-respondent mechanism, the proposed procedure by the
DAA proved not to be sufficient to effectively protect the autonomy. The CJEU found two aspects
of Article 3(6) DAA failing to recognise the essential characteristics of the EU and the autonomy
of the EU legal order.
110.
The first issue with the prior involvement procedure is that the DAA limits the scope of
the CJEUs assessment of secondary law to a review of validity.306 The essential characteristics of
the CJEU with regards to its jurisdiction over secondary law not only encompass validity
assessment, but also interpretation. The DAA should ensure these characteristics of the CJEU,
and include the possibility of interpretation of EU secondary law in the course of the prior
involvement procedure.
111.
The second issue concerns the decision to start the prior involvement procedure, which
is based on an assessment of the case law of the CJEU.307 The institution that would be
responsible to instigate the procedure would have to study the case law of the CJEU to establish
whether the CJEU has already dealt with the compatibility of the contested EU law provision
with fundamental rights. If this assessment would be left to the ECtHR, the Court in Strasbourg
would have to interpret EU law, which is at odds with the autonomy of the EU legal order. Thus,
the DAA should ensure that such an assessment is made within the EU.
ECHR – Working document from the Presidency’, 7, <http://www.statewatch.org/news/2011/nov/eucouncil-echr-accession-fop-ds-1675-11.pdf>
306 See number 103
307 See number 105
54
III. The DAA and inter-party cases
1. The clash between Article 33 ECHR and Article 344 TFEU
112.
Article 33 ECHR provides the possibility for a High Contracting Party to the ECHR to sue
another High Contracting Party before the ECtHR for an alleged violation of the ECHR or the
Protocols thereto. Under the DAA, no procedural changes were made to this Article, meaning
that if the EU would accede to the ECHR, under Article 33 ECHR all High Contracting Parties
would be able to bring an action before the ECtHR against the EU and the EU against them. 308
Since all Member States of the EU are parties to the ECHR, they already have the possibility to
bring applications concerning violations of the ECHR against each other and other High
Contracting Parties. However, as long as the EU does not accede to the ECHR, this does not as
such entail a threat to the autonomy of the EU legal order, a situation that would change
dramatically post-accession.
113.
It is settled case law of the CJEU that when the EU concludes an agreement under
international law, that agreement becomes an integral part of EU law.309 After accession the
same would apply to the ECHR, consequently the application and interpretation of the ECHR
would come under the jurisdiction of the CJEU conferred to it by Article 19(1) TEU. Article 344
TFEU prohibits Member States from submitting applications that concern the application or
interpretation of EU law to other dispute settlement mechanisms than the ones provided for in
the Treaties. Analogously, the same would apply to cases between the EU and one or more
Member States.310
114.
Potential issues arising from the application of Article 344 TFEU were referred to in
Protocol No. 8 EU, which reads that nothing in the DAA shall affect this provision.311 To this end,
Article 5 DAA states that a procedure before the CJEU would not be considered a “means of
dispute settlement within the meaning of Article 55 of the Convention.” Article 55 ECHR is the
counterpart of Article 344 TFEU in the ECHR system, restricting the High Contracting Parties
from bringing disputes concerning the application or interpretation of provisions of the ECHR
before other dispute settlement mechanisms than the ECtHR. If after accession Article 55 ECHR
would prohibit the EU and Member States from bringing cases concerning the ECHR before the
CJEU, this would obviously interfere with the autonomy of the EU legal order, since it would
interfere with the exclusive jurisdiction of the CJEU.
Article 33 ECHR would then read ‘inter-party cases’, instead of the current wording ‘inter-state cases’,
see Article 4 DAA
309 Case 181/73 Haegeman v. Belgian State [1974] ECLI:EU:C:1974:41, para. 5.
310 Opinion 2/13, o.c., para. 202
311 Article 3 of Protocol 8 No. EU
308
55
115.
Yet, besides the text of Article 5, the DAA leaves the questions arising from the conflict
between Article 344 TFEU and Article 33 ECHR unanswered. The Draft Explanatory Report
expressly states that the DAA does not govern the (im)possibility of launching Article 33 ECHR
cases under EU law and only refers to the text of Article 344 TFEU.312 During the negotiations
this issue had been brought up, but it was not considered necessary to include the express
interdiction for the EU and Member States to bring disputes between them before the ECtHR.313
In that view, the problem arising from Article 33 ECHR for Article 344 TFEU is an internal EU
problem, to be solved by an agreement between the EU and its Member States, and not by the
ECHR.314
2. Assessment
116.
Article 33 ECHR only provides the High Contracting Parties with the possibility of
launching an inter-state (or inter-party) case, it does not hold any obligation.315 Consequently it
could be argued that the prohibition under Article 344 TFEU should be sufficient to refrain the
Member States from using this possibility.316 However, it becomes apparent from Opinion 2/13
that according to the CJEU the mere existence of such a possibility after the EU accedes to the
ECHR is enough to endanger the autonomy of the EU legal order.317
117.
It is interesting to note the difference in approach between Advocate General Kokott and
the CJEU in Opinion 2/13 towards the relation between Article 344 TFEU and Article 33 ECHR.
According to the Advocate General, accession to the ECHR in principle comes without
consequences for the application of Article 344 TFEU, whereas the CJEU comes to the opposite
conclusion.318 Confirming that there is nothing in the DAA preventing the EU or its Member
States from bringing applications against each other under Article 33 ECHR, Advocate General
Kokott continues to state that it would not be strictly necessary to give formal precedence of
Draft Explanatory Report, para. 72
Steering Committee for Human Rights (CDDH) (DG-II(2002)006), 28 June 2002, ‘Study of technical and
legal issues of a possible EC/EU accession to the European Convention on Human Rights’, para.
65,<http://www.coe.int/t/dghl/standardsetting/hrpolicy/Accession/Working_documents/Study_accessi
on_UE_2002_en.pdf> (accessed 26 April 2015); Draft elements prepared by the Secretariat on the
Procedure before the European Court of Human Rights (Chapter C of the draft list of issues) (CDDHUE(2010)12) 12 October 2010, 12,
<http://www.coe.int/t/dghl/standardsetting/hrpolicy/Accession/Working_documents/CDDHUE_2010_12_en.pdf> (accessed 26 April 2015)
314 Ibid.
315 Draft elements prepared by the Secretariat on the Procedure before the European Court of Human
Rights, o.c., 12
316 J.P. Jacqué, ‘The accession of the European Union to the European Convention on Human rights and
fundamental freedoms’ (2011) 48 CML Rev, 1009
317 Opinion 2/13, o.c., para. 208
318 View of Advocate General Kokott, Opinion 2/13, o.c., para. 119; Opinion 2/13, o.c., para. 208
312
313
56
Article 344 TFEU over Article 33 ECHR.319 The possibility of bringing an infringement procedure
under Article 258 TFEU combined with the possibility of interim measures under Article 279
TFEU would suffice to refrain the EU and its Member States from violating Article 344 TFEU. 320
Moreover, the Advocate General recalls that there are several other agreements concluded by
the EU which do not contain an explicit safeguard for Article 344 TFEU.321
118.
The CJEU turns to a different approach, stating that “the fact that Member States or the EU
are able to submit an application to the ECtHR is liable in itself to undermine the objective of
Article 344 TFEU and, moreover, goes against the very nature of EU law”.322 What is provided in
Article 5 DAA is not sufficient, and contrary to the view of Advocate General Kokott, the CJEU
requires “the express exclusion of the ECtHR’s jurisdiction under Article 33 of the ECHR” in
disputes between the EU and Member States.323 The question thus rises what the consequences
are of this position for agreements already concluded by the EU or for future agreements with
their own dispute settlement mechanism which do not contain such express exclusions of
jurisdiction for the benefit of the CJEU.324 Following the reasoning of the CJEU in Opinion 2/13,
such agreements would not be compatible with the Treaties.
119.
Advocate General Kokott proposed that in case the CJEU would not share her view, a
unilateral declaration could be made by the EU and the Member States that they would refrain
from turning to inter-state complaints under Article 33 ECHR.325 Another possibility would be to
include a disconnection clause in the DAA.326 The CJEU itself refers to the Mox Plant case, where
Ireland had started proceedings against the United Kingdom before the dispute settlement
mechanism provided under UNCLOS.327 In that case there was a disconnection clause provided
by Article 282 of the UNCLOS:
“If the States Parties which are parties to a dispute concerning the interpretation or
application of this Convention have agreed, through a general, regional or bilateral
agreement or otherwise, that such dispute shall, at the request of any party to the
dispute, be submitted to a procedure that entails a binding decision, that procedure
I.e. through a disconnection clause, see infra number 120; View of Advocate General Kokott, Opinion
2/13, o.c., paras. 115-116
320 Ibid., para. 118
321 View of Advocate General Kokott, Opinion 2/13, o.c., para. 117
322 Opinion 2/13, o.c., para. 212
323 Ibid., para. 213
324 Ø. Johansen, ‘The Reinterpretation of TFEU Article 344 in Opinion 2/13 and Its Potential Consequences’
(2015) Vol. 16 No. 1 German Law Journal , 169
325 View of Advocate General Kokott, Opinion 2/13, o.c., para. 120
326 See, on the subject of disconnection clauses: M. Cremona, “Disconnection clauses in EU law and
practice” in C. Hillion and P. Koutrakos (eds.) Mixed Agreements Revisited: the EU and its Member States in
the World (Hart Publishing Ltd., Oxford 2010)
327 Opinion 2/13, o.c., para. 215 and Case C-459/03 Commission v. Ireland, o.c.
319
57
shall apply in lieu of the procedures provided for in this Part, unless the parties to the
dispute otherwise agree.”328
120.
Disconnection clauses have become common under EU law in mixed agreements
concluded with the Council of Europe to ensure the autonomy of the EU legal order.329 An
example can be found in the Council of Europe Convention on Laundering, Search, Seizure and
Confiscation of the Proceeds from Crime and on the Financing of Terrorism:
“Parties which are members of the European Union shall, in their mutual relations,
apply Community and European Union rules in so far as there are Community or
European Union rules governing the particular subject concerned and applicable to
the specific case, without prejudice to the object and purpose of the present Convention
and without prejudice to its full application with other Parties.”330
121.
Usually such a clause gives precedence to EU law over the provisions of the international
agreement in the relations between the Member States (and the EU).331 This confirms the
obligation under Article 344 TFEU and would, if incorporated in the DAA, ensure that the
procedures under EU law would be used between the Member States and the EU instead of the
inter-party procedure of Article 33 ECHR. 332
United Nations Convention on the Law of the Sea of 10 December 1982, Article 282
See for examples of disconnection clauses: Article 27(2) Council of Europe Convention on Mutual
Administrative Assistance in Tax Matters, 25 Januari 1988, CETS No 127; Article 43(3) Council of Europe
Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse, 25 October 2007,
CETS No 201
330 Article 52(4) Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the
Proceeds from Crime and on the Financing of Terrorism, 16 May 2005, CETS No. 198
331 M. Cremona, “Disconnection clauses in EU law and practice” in C. Hillion and P. Koutrakos (eds.) Mixed
Agreements Revisited: the EU and its Member States in the World (Hart Publishing Ltd., Oxford 2010), 168
332 Ibid., 172
328
329
58
CHAPTER II: ISSUES THAT WERE NOT ADDRESSED
122.
In Opinion 2/13 the CJEU found several aspects of the DAA falling short in preventing
interference with the autonomy of the EU legal order. The first chapter of part II dealt with the
solutions for autonomy related problems that were provided by the DAA and proved to be
insufficient by the CJEU to protect the autonomy of EU law. This chapter focusses on four issues
that in the view of the CJEU are likely to affect the autonomy, but were not foreseen by the DAA,
and are not explicitly dealt with in the draft accession instruments. These issues are the
discrepancy between the jurisdiction of the CJEU and of the ECtHR over the CFSP (I), the
problem arising from the combination of Article 53 of the Charter and Article 53 ECHR (II), the
risk for the principle of mutual trust under EU law (III) and the problems emmanating from
Protocol No. 16 to the ECHR (IV).
I. Common Foreign and Security Policy
123.
With the abolition of the pillar structure in the Lisbon Treaty the former three pillars
were all integrated in the European Union. Still the former Second Pillar, the CFSP, has a special
position. It is of an intergovernmental nature and is governed by the provisions of the TEU
instead of the TFEU.333 Most importantly for this research, the CFSP is – with two exceptions –
excluded from the jurisdiction of the CJEU.334 The first exception involves Article 40 TEU and
enables the CJEU to assess whether the EU was competent to act in a specific situation, ensuring
that the exercise of its competences under the CFSP does not interfere with other external
competences.335 The second exception grants the CJEU the power to perform legality review in
line with Article 263(4) TFEU of decisions that provide restrictive measures against natural or
legal persons.336 This last exception guarantees that in many CFSP matters where human rights
violations could occur those persons have the possibility of having review by the CJEU.
124.
On the other hand, under the Common Security and Defence Policy the EU engages in
external action such as peace keeping missions, humanitarian tasks, conflict prevention, etc. 337
Such action is not always limited to restrictive measures against individuals, leaving a whole lot
P. Koutrakos, ‘The European Union’s Common Foreign and Security Policy after Lisbon’ in D.Ashiagbor,
N. Countouris, I. Lianos (eds.) The European Union after the Treaty of Lisbon (Cambridge University Press,
Cambridge 2012) 188-189
334 Article 24(1) para. 1 TEU; for an analysis, see C. Hillion, ‘A powerless court? The European Court of
Justice and the Common foreigh and Security Policy’ in M. Cremona and A. Thies (eds.) The European Court
of Justice and external relations law (Hart Publishing, Oxford 2013) 47-70
335 P. Craig and G. De Búrca, EU law, text, cases, and materials (Oxford University Press, New , New York
2011) 356-357
336 Article 275(2) TFEU
337 See Titel V, Chapter 2, Section 2 TEU
333
59
of possible fundamental rights violations falling outside the scope of jurisdiction of the CJEU.
Additionally, because the EU is not a party to the ECHR, the jurisdiction of the ECtHR is also
limited. At the moment, violations of the ECHR in the field of CFSP can either be attributable to
the Member States, in which case they will be held responsible in Strasbourg,338 or to the EU
itself. Applications directed against the EU in the latter case are declared inadmissible ratione
personae by the ECtHR.339 Post-accession, under the conditions of the DAA, the ECtHR would be
able to deal with violations attributable to the EU, even when under EU law the CJEU would not
have jurisdiction. It has been argued that this would be a welcome improvement for judicial and
human rights protection.340 At the same time it has proven to be a highly sensitive topic; during
the negotiations of the accession instruments it was debated whether the external control of the
ECtHR should stretch out over this area.341 The possibility of external review by the ECtHR
would create an asymmetry between the jurisdiction of the CJEU and the ECtHR. As will be
discussed below the CJEU found the extension of the jurisdiction of the ECtHR over the entire
CFSP falling foul of the autonomy of the EU legal order.
125.
The DAA makes no distinction between different aspects of EU law or the specific nature
of its provisions. The Draft Explanatory Report expressly states that accession covers all acts,
measures and omissions of the EU, including those falling within the area of the CFSP.342 A
reservation to exclude the CFSP from the jurisdiction of the ECtHR after accession would not be
possible, since Article 57(1) ECHR does not allow reservations of a general nature. Therefore the
DAA does not provide any specific arrangements for the EU regarding its CFSP. Two aspects of
this topic are discussed here in the light of the autonomy of the EU legal order.
In accordance with Article 1 ECHR
Behrami and Behrami v. France (App. No. 71412/01) and Saramti V. France, Germany and Norway (App.
No. 78166/01) (ECtHR 2 May 2007) paras.151-152
340 European Parliament Resolution (2009/2241 (INI)) of 19 May 2010 on the institutional aspects of the
accession of the European Union to the European Convention for the Protection of Human Rights and
Fundamental Freedoms [2011] OJ CE161/72, para. 1; J. Polakiewicz, ‘EU law and the ECHR: will the
European Union’s accession square the circle?’ 16,
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2331497> (accessed 27 April 2015); C. Eckes, ‘EU
Accession to the ECHR: Between Autonomy and Adaptation’ (2013) 76(2) MLR 283
341 France requested the exclusion of the CFSP from the DAA, but was not followed in this by the other
Member States, see Friends of Presidency (FREMP) working document (DS 1675/11) 4 November 2011,
‘Accession of the European Union to the ECHR – Working document from the Presidency’, 3-4,
<http://www.statewatch.org/news/2011/nov/eu-council-echr-accession-fop-ds-1675-11.pdf> ; Council
of the European Union document (16385/11) 8 November 2011, ‘Accession of the European Union to the
European Convention for the protection of Human Rights and Fundamental Freedoms (ECHR): - State of
play’, 3 <http://www.statewatch.org/news/2011/nov/eu-council-echr-accession-16385-11.pdf>
(accessed 26 April 2015)
342 Draft Explanatory Report, para. 23
338
339
60
1. Competence of the CJEU
126.
A first issue was dealt with by Advocate General Kokott: part of her analysis is devoted to
the question whether accession would require new competences for the EU.343 Post-accession,
all areas of EU law would have to be in line with the principles of the ECHR, including the
requirements for effective judicial protection (as established by Articles 6 and 13 ECHR). The
problem lies in the fact that the CJEU does not have, or rarely has, jurisdiction in matters
concerning the CFSP.344 Would this limited jurisdiction in CFSP-matters be sufficient to meet the
standards of Article 6 and 13 of the ECHR? If not, a Treaty amendment would be required to
extend the jurisdiction of the CJEU in CFSP matters. Otherwise, by acceding to the ECHR the EU
would be committing itself to international obligations it would not be able to fulfill.345
127.
According to the Commission there would be no risk that the judicial protection offered
by the EU in the area of CFSP would be insufficient.346 The Commission suggests a broad
interpretation of Article 275 TFEU, by which cases could be brought either before the CJEU for
an action for annulment or before the Member State courts which could ask the CJEU for a
preliminary ruling.347 In addition, for those acts that do not produce legal effects, an individual
could turn to the EU courts by means of an action for damages (Article 340 TFEU).348 Not
surprisingly, this proposed interpretation of Article 275 TFEU of the Commission is not followed
by the Advocate General and the CJEU.349 The CJEU has so far not expressed itself on the scope of
its jurisdiction in CFSP matters (and refused to do so in Opinion 2/13)350 and moreover, the
interpretation of the Commission undermines the background and intergovernmental nature of
the CFSP (and therefore the limited role of the CJEU in it).
128.
Nevertheless, fundamentally the Advocate General does reach the same conclusion as the
Commission, albeit by a different reasoning. She recalls the task of the courts of the Member
States in ensuring effective judicial protection, also in the area of CFSP.351 Regardless whether a
CFSP act requires implementing measures by the Member States or not, in cases where
applicants cannot challenge the measure in Luxembourg, they have this possibility in the
This issue has already been dealt with on a more general level in numbers 39-43
Article 24(1) para. 1 TEU
345 View of Advocate General Kokott, Opinion 2/13 Accession of the European Union to the European
Convention for the Protection of Human Rights and Fundamental Freedoms [2014] ECLI:EU:C:2014:2475,
para. 85
346 Opinion 2/13 Accession of the European Union to the European Convention for the Protection of Human
Rights and Fundamental Freedoms [2014] ECLI:EU:C:2014:2454, para. 100
347 Ibid., para.98
348 Ibid., para. 99
349 Ibid., para. 251; View of Advocate General Kokott, Opinion 2/13, o.c., para. 95
350 Opinion 2/13, o.c., para. 251
351 View of Advocate General Kokott, Opinion 2/13, o.c., para. 97
343
344
61
national courts.352 Even without the jurisdiction of the CJEU to interpret or invalidate CFSP
provisions, effective judicial protection is ensured in the Member State courts.353
129.
The CJEU did not address the question whether accession would require new
competences for the CJEU in order for the EU to be in line with the standards of the ECHR
regarding effective judicial protection. It was not even necessary to elaborate on this issue, since
the CJEU needed only few paragraphs to find accession failing to accommodate the autonomy of
the EU legal order by allowing human rights review by the ECtHR over all CFSP matters.354
2. Discrepancy between the jurisdiction of the CJEU and of the ECtHR
130.
As set out earlier (see number 123), the CJEU has only limited jurisdiction when it comes
to the CFSP. Because of this limited competence of the CJEU the Member State courts are the
only competent courts under EU law when it comes to certain fields of the CFSP.355 There is no
possibility of a preliminary reference to the CJEU, and therefore no guarantee that there is a
uniform interpretation and application of CFSP provisions.
131.
The consequence of accession would be that the ECtHR would have the power to assess
compatibility of CFSP acts, measures or omissions with the ECHR, even where the CJEU could not
do the same. In this context the autonomy question poses itself again: would this asymmetry
encroach upon the jurisdiction of the CJEU, would it be acceptable to have one aspect of EU law
dealt with by a court outside of the EU legal order (when the rights of the ECHR are concerned)?
So far, it has been argued in this dissertation that the arguments of the CJEU relating to the
autonomy of the EU legal order in Opinion 2/13 were not surprising in the light of its previous
case law.356 Regarding the CFSP the question thus arises whether again this is an issue the
drafters should have been able to foreseen. Whereas Advocate General Kokott and the CJEU in
most other aspects of their assessment came to a similar conclusion albeit by a different
reasoning or with a different proposed solution, regarding the CFSP their conclusion is
fundamentally different.
132.
The Court in Luxembourg is very short and invokes its ruling in Opinion 1/09 where it
found the Draft Agreement on the European and Community Patents Court (hereafter DAECPC)
Ibid., paras. 98-99
Ibid., paras. 102-103
354 Opinion 2/13, o.c., paras. 255-257
355 C. Hillion, ‘A powerless court? The European Court of Justice and the Common foreigh and Security
Policy’ in M. Cremona and A. Thies (eds.) The European Court of Justice and external relations law (Hart
Publishing, Oxford 2013) 67
356 See numbers 84, 87, 103 , 106 and 113
352
353
62
incompatible with the autonomy of the EU legal order.357 The Patents Court to be set up under
that agreement would have had exclusive jurisdiction over claims of individuals related to some
aspects of Community patents (Article 15 of the DAECPC). It would have to apply and interpret
EU law, and in case of doubt could ask the CJEU for a preliminary ruling. In Opinion 1/09, the
CJEU stated that giving exclusive jurisdiction in the field of Community patents to a court outside
the EU legal order undermined the autonomy of EU law. The CJEU itself did not have jurisdiction
to rule on individual claims concerning patents, this was the task of the Member State courts.
Therefore, by conferring this power on the Patents Court, these national courts were deprived of
this task, and moreover, of the possibility of asking for a preliminary ruling from the CJEU on the
interpretation and application of EU law, an essential characteristic of the Member State
courts.358
133.
Because of the explicit reference to Opinion 1/09 as a justification for the stance that the
DAA is incompatible with the autonomy principle it is interesting to compare the situation that
was at stake in that opinion with the one in the opinion at hand. Paragraph 79 of Opinion 1/09
lists the aspects of the Patents Court that led to incompatibility with the EU legal order.359 Three
of them are of interest for the situation of the CFSP and accession to the ECHR.
134.
A first problem with the Patents Court was that it would take the place of the Member
State courts by having exclusive jurisdiction in a certain field of EU law.360 It is obvious that the
same problem does not occur in the context of the ECHR. The jurisdiction of the ECtHR is
characterised by the principle of subsidiarity; it relies on the national courts of the High
Contracting Parties and only comes into play when an application has been dealt with on a
national level first. The jurisdiction of the ECtHR would therefore not deprive the Member State
courts of their powers in the field of CFSP. A second problem with the Patents Court was that the
national courts would be deprived of their power to make a preliminary reference to the CJEU.361
The same problem cannot occur in the context of CFSP, since the CJEU does not have the power
to give preliminary rulings in this field. A third problem with the Patents Court revolved around
the power of this court to interpret and apply EU law, and even examine its validity, possibly in
the light of fundamental rights.362 Again, this is not an issue that would arise in the context of the
ECHR, it has been established earlier that the ECtHR would in no way interpret EU law in a
See also number 33; Opinion 1/09 Draft Agreement, Creation of a unified patent litigation system
[2011] ECLI:EU:C:2011:123
358 Opinion 1/09, o.c., paras. 83-85 and 89
359 Ibid., para.79
360 Ibid., para. 80
361 Ibid., para. 81
362 Ibid., para. 78
357
63
binding manner or declare it invalid.363 It would simply look into the provision, action or
omission before it (in this case within the context of the CFSP) and declare it (in)compatible with
the ECHR.
135.
The greatest difference between the situation of the DAECPC and the context of accession
to the ECHR is that in the first one the Member States entrusted another court exclusively with
part of their jurisdiction concerning Community patents. This would not be the case in the field
of CFSP after accession to the ECHR. The ECtHR would provide additional protection while the
Member State courts would still be the first adjudicators on the compatibility of CFSP matters
with fundamental rights. Therefore neither the Member State courts, nor the CJEU (since it does
not always have jurisdiction in the first place) would be deprived of part of their jurisdiction for
the benefit of the ECtHR.
136.
Advocate General Kokott in Opinion 2/13 finds no problem regarding the autonomy of EU
law if the EU would recognise “the jurisdiction of an international court whose jurisdiction in a
particular field (...) extends further than that of the EU institution which is the Court of Justice of
the EU.”364 The Advocate General recalls that the autonomy argument is used to avoid
inconsistencies in the application and interpretation of EU law as this is set out in the case law of
the EU courts.365 However, in the field of CFSP this issue does not pose itself, since it was
explicitly withdrawn from the supranational structure distinctive for the rest of EU law.366
Interesting to note is that the Advocate General states that, since in the CFSP the CJEU does not
have the power to reply by means of a preliminary ruling, it does not have its usual monopoly on
the review of legality of EU law.367 As a consequence, the Foto-Frost reasoning does not apply,
leaving the Member State courts with the power to conduct a legality assessment of CFSP
provisions and if necessary to not apply them in a particular case before them.368 This approach
seems to indicate that according to Advocate General Kokott if the CJEU does not have
jurisdiction in a certain field of EU law it cannot claim to have a monopoly on it. Therefore,
allowing other courts, such as those of the Member States, to have this power, would not
interfere with the jurisdiction of the CJEU, and would not interfere with the autonomy of EU law.
This certainly seems a reasonable perception: if the CJEU does not have jurisdiction, it cannot
claim to have its usual exclusive powers. Consequently, there would also be no reason not to
See numbers 50 and 58
View of Advocate General Kokott, Opinion 2/13, o.c., para. 191
365 Ibid., para. 192
366 Ibid., para. 193
367 Ibid., para. 100
368 Ibid.
363
364
64
accept the power of the ECtHR in reviewing the compatibility of CFSP measures, acts or with the
ECHR.
137.
The problem regarding CFSP matters in the context of accession to the ECHR uncovers a
more general internal EU issue: there is no guarantee of a uniform approach in all CFSP matters,
since there is not always a supranational court to provide the necessary guidelines.369 This
difficulty exists with or without accession to the ECHR. There is another area of EU law where
the CJEU has limited jurisdiction: primary law. The power of the CJEU is limited to questions of
interpretation when it comes to primary law, it has no power to invalidate such provisions. 370
Under the DAA, primary law would also come under the jurisdiction of the ECtHR. It has been
argued that excluding primary law from the ECtHR’s jurisdiction would be an unnecessary
privilege for the EU, which strives to accede on an equal footing with all other High Contracting
Parties.371 It could even create a risk for the autonomy of the EU legal order, since the ECtHR
would be required to decide in the case before it whether a contested EU law provision is of a
secondary or primary law nature.372 Finally, the problem that surrounds the CFSP in the context
of accession does not pose itself with regards to primary law. Even if the ECtHR would have the
power to review primary law on its compatibility with the ECHR, the CJEU would still be there to
ensure a uniform interpretation and application within the EU legal order. When doubt arises on
the scope or meaning of a provision of primary law, the Member State courts can ask
clarification from the CJEU through a preliminary reference procedure.
138.
Presumably, the risk envisaged by the CJEU in the context of accession to the ECHR with
regards to the CFSP is that in certain CFSP cases involving fundamental rights, the Member State
courts could only rely on case law of the ECtHR. The CJEU sometimes would not have
jurisdiction, no preliminary reference could be made and consequently the national courts
would have to rely solely on the ECtHR to provide an answer. This would be fortified even more
by the procedure under Protocol No. 16, which would allow the national courts to ask the ECtHR
This is confirmed by Advocate General Kokott: “There is no doubt that it is highly regrettable from the
aspect of integration policy that, in matters relating to the CFSP, the Court of Justice has no jurisdiction to
give preliminary rulings or a monopoly on ruling on validity as in Foto-Frost, because, as a result, the uniform
interpretation and application of EU law in the context of the CFSP cannot be ensured. That is, however, the
logical consequence of the decision by the Treaty legislature to continue to configure the CFSP essentially
along intergovernmental lines, and to restrict the supranational element inherent in the jurisdiction of the
Court of Justice to narrowly circumscribed exceptions which are exhaustively enumerated in the second
paragraph of Article 275 TFEU” (View of Advocate General, Opinion 2/13, o.c., para. 101)
370 Article 267(a) TFEU
371 P.Gragl, ‘A Giant Leap for Eurpean Human Rights? The final agreement on the European Union’s
Accession to the European Convention on Human Rights’ (2014) 51 CMLR 29 and Draft Explanatory
Report, para. 7
372 P. Gragl, The accession of the European Union to the European Convention on Human Rights (Hart
Publishing, Oxford 2013) 131
369
65
for a preliminary ruling when doubt arises on the compatibility of an act, measure or omission
under the CFSP with the ECHR. According to Halberstam, eventually this could lead to a situation
where the ECtHR would interpret EU law, since sometimes it would have to choose between
several possible interpretations of CFSP provisions, and the CJEU would not be there to provide
clarity.373
139.
It can be concluded that the position of the CJEU may not have been entirely predictable
in the light of its previous case law (Opinion 1/09 in particular). It would have been desirable to
have the CJEU elaborating more on its reasons for refusing the control of the ECtHR in CFSP
matters. The reasoning in Opinion 2/13 is rather short, leaving room for too much speculation
regarding the underlying objectives of the CJEU. On the other hand it is not that hard to see
where the position comes from, given the always present concern of the CJEU to ensure uniform
interpretation and application of EU law.
140.
The difficulty of course is how to solve the issue revolving around the CFSP in the light of
accession to the ECHR. The CJEU clearly will not accept any agreement that confers jurisdiction
on the ECtHR in the areas of the CFSP where itself has none. Because of Article 57 ECHR, which
does not allow reservations of a general nature, the CFSP cannot entirely be excluded from the
application of the ECHR. Additionally, it is not likely that non-EU parties to the ECHR would
accept an exception on the part of the EU regarding the CFSP, even if this could be limited to
those aspects over which the CJEU has no jurisdiction. Moreover, since the CJEU refused to
elaborate on the exact scope of its jurisdiction with regards to the CFSP, it remains unclear to
what aspects such limitation should extend.374 The other option would be to amend the Treaties
and extend the jurisdiction of the CJEU over the CFSP, or to allow accession anyway under the
current circumstances by providing a provision in Protocol No. 8 EU that the EU can accede,
regardless of the limited jurisdiction of the CJEU over the CFSP.375
141.
The question also remains whether the position of the CJEU in Opinion 2/13 can be
reconciled with the desire of the Member States. It should be kept in mind that the Member
States chose to limit the jurisdiction of the CJEU in CFSP matters, just as they chose to oblige the
EU to accede to the ECHR in Article 6(2) TEU. All Member States found the DAA compatible with
the Treaties,376 one could therefore assume that it is the wish of the Member States to have
fundamental rights review in Strasbourg over all EU action under the CFSP.
D. Halberstam ‘It's the autonomy, stupid! A modest defense of Opinion 2/13 on EU accession to the
ECHR, and the way forward’ (2015) 16 German Law Journal 143
374 Opinion 2/13, o.c., paras. 251-252
375 Editorial comments, ‘The EU’s Accession to the ECHR – a “NO” from the ECJ!’ (2015) Vol. 52 Issue 1
CMLR 14
376 Opinion 2/13, o.c., para. 109
373
66
II. Article 53 of the Charter and Article 53 ECHR
142.
In this dissertation it has been argued before that the autonomy argument, even though
it is related to principles such as the rule of law and fundamental rights protection, does not
necessarily guarantee the highest level of human rights protection.377 This has been confirmed in
Opinion 2/13. The CJEU found a threat to the autonomy of the EU legal order in the combination
of Article 53 of the Charter and Article 53 of the ECHR. At first sight, both Articles seem to have
the same purpose: allowing a higher standard of fundamental rights protection than what is
provided in the Charter and the ECHR.378 Whereas this is true for Article 53 ECHR, the text of
Article 53 of the Charter should be read in the light of the case law of the CJEU, giving it a very
different meaning.379
143.
In Melloni the CJEU defined the scope of Article 53 of the Charter.380 In this case, the
essential question was whether this provision allowed Spain to give priority to its constitutional
fundamental rights protection over the execution of the European Arrest Warrant (hereafter
EAW). If Spain would execute the EAW, it would act in compliance with the Charter, but not with
its own constitution. If Article 53 of the Charter could be interpreted as allowing Spain to set
higher standards of protection it could act in line with its constitution. In that case it would not
execute the EAW and therefore would not apply EU law. The CJEU stated that such an
interpretation of Article 53 of the Charter “would undermine the principle of the primacy of EU
law inasmuch as it would allow a Member State to disapply EU legal rules which are fully in
compliance with the Charter where they infringe the fundamental rights guaranteed by that State’s
constitution”.381 The principle of primacy of EU law is a fundamental aspect of the autonomy
principle (see also number 19 and 20). Consequently, when implementing EU law the Member
States cannot apply a higher standard of human rights protection than the standards of the
See number 23
Article 53 of the Charter: “Nothing in this Charter shall be interpreted as restricting or adversely affecting
human rights and fundamental freedoms as recognised, in their respective fields of application, by Union law
and international law and by international agreements to which the Union, the Community or all the Member
States are party, including the European Convention for the Protection of Human Rights and Fundamental
Freedoms, and by the Member States’ constitutions”
Article 53 ECHR: “Nothing in this Convention shall be construed as limiting or derogating from any of the
human rights and fundamental freedoms which may be ensured under the laws of any High Contracting
Party or under any other agreement to which it is a party”
379 A. Bailleux, ‘Entre droits fondamentaux et intégration européenne, la Charte des droits fondamentaux
de l’Union européenne face à son destin (C.J.U.E., Stefano Melloni et Åkerberg Fransson, 26 février 2013)’
(2014) Revue Trimestrielle des Droits de l’Homme 229
380 Case C399/11 Stefano Melloni v. Ministerio Fiscal [2013] ECLI:EU:C:2013:107
381 Ibid., para. 58
377
378
67
Charter when this would compromise the level of protection offered by the Charter, the unity or
effectiveness of EU law.382
144.
Article 53 ECHR on the other hand provides no restrictions for the High Contracting
Parties: they are free to set and apply a higher standard of protection than what is provided for
by the ECHR.383 As a consequence, this principle would allow the Member States to apply their
higher standard of protection, even for ECHR rights that correspond to rights in the Charter.
That way the Member States could invoke Article 53 ECHR to justify the application of their own
constitutional level of protection. This could endanger the primacy and uniform application of
EU law. The DAA does not provide for a coordination between those two provisions and
according to the CJEU this lack of coordination creates the risk of undermining the autonomy of
the EU legal order.384
145.
The interpretation of Article 53 of the Charter is in line with the case law on primacy of
EU law: national (constitutional) law cannot prejudice the effective application of EU law.385
Even though this issue was not addressed by the Advocate General, the fear of the CJEU in
Opinion 2/13 that Article 53 ECHR would endanger the autonomy of EU law is therefore not very
surprising. The CJEU demands that the DAA should provide for a coordination between both
Articles 53, but does not elaborate on the practical implementation of such coordination. One
way to achieve this might be to clarify the scope of Article 53 ECHR in the accession instruments.
A provision could specify that this Article does not prevent the effect of obligations of High
Contracting Parties under other bilateral or multilateral agreements, or more specifically the
obligations of the Member States under EU law.386 On the other hand it could be argued that a
solution could be found without having to amend the DAA or its complementing documents. A
unilateral declaration could be made by the Member States, ensuring that they would not make
use of the ‘power’ that is granted to them under Article 53 ECHR under the circumstances
governed by Article 53 of the Charter.387
Ibid., para. 59; L. F.M. Besselink, ‘The parameters of constitutional conflict after Melloni’, (2014) Vol. 39
Nr. 4 European Law Review 557-558; However, Article 53 of the Charter does not entirely prevent
Member States from applying a higher standard of protection than what is allowed under the Charter. If
there is no common definition provided at the level of the EU of the standard of protection of the
fundamental right at issue applicable in the implementation of EU law, the Member States have a wider
margin of discretion in deciding on the level of protection they want to offer. (See Opinion of Advocate
General Bot, Case C399/11 Stefano Melloni v. Ministerio Fiscal [2013] ECLI:EU:C:2012:600, paras. 124 and
127; Case C-617/10 Åklagaren v Hans Åkerberg Fransson [2013] ECLI:EU:C:2013:105, para 29)
383 J. Vande Lanotte and Y. Haeck, Handboek EVRM (Intersentia, Antwerpen 2005) 122
384 Opinion 2/13, o.c., para. 189
385 Case 6/64 Costa v. ENEL [1964] ECLI:EU:C:1964:66; Case 11/70 Internationale Handelsgesellschaft
[1970] ECLI:EU:C:1970:114
386 See number 120 on disconnection clauses
387 Opinion 2/13, o.c., para. 189
382
68
146.
On the other hand, it has also been argued that the arguments of the CJEU are unfounded,
and that no coordination should be required.388 According to this reasoning, under EU law
(Article 53 of the Charter and the Melloni reasoning) the Member States were already prevented
from applying their own standards of protection in those areas that are fully covered by EU law.
Accession to the ECHR would not bring any changes to this situation, since Article 53 ECHR does
not grant them any powers they did not already have before.389
D. Halberstam ‘It's the autonomy, stupid! A modest defense of Opinion 2/13 on EU accession to the
ECHR, and the way forward’ (2015) 16 German Law Journal 125; P. Eeckhout, ‘Opinion 2/13 on EU
Accession to the ECHR and Judicial Dialogue – Autonomy or Autarky?’, Jean Monnet Working Paper 01/15,
13 <http://www.jeanmonnetprogram.org/papers/15/eeckhout.html> (accessed 27 April 2015)
389 Halberstam, o.c. 125
388
69
III. Principle of mutual trust
147.
A highly contested part of Opinion 2/13 is the reasoning of the CJEU with regards to the
threat to the autonomy that follows from the DAA because it does not contain a guarantee that
the principle of mutual trust would remain untouched.390 Interestingly, this issue was also not
addressed by Advocate General Kokott in her assessment of the DAA. The principle of mutual
has a central role in the Area of Freedom, Security and Justice (AFSJ).391 It lies at the basis of the
mutual recognition and cooperation between the Member States in asylum, migration and civil
and criminal matters.392 The principle of mutual trust is considered by the CJEU “the raison d’être
of the European Union and the creation of an area of freedom, security and justice.”393 It allows for
fast and smooth cooperation between the Member States, which is ever more important in
matters where it is necessary to act quickly. On the basis of this principle a Member State in a
particular case has to trust that another Member State has respected the conditions and human
rights standards that are required under EU law.394
148.
An example of the importance of mutual trust can be found in the Framework Decision
on the European Arrest Warrant (hereafter EAW).395 The EAW allows a Member State to request
the surrendering of a person that is located in another Member State to start criminal
proceedings against that person or execute a custodial sentence or detention order.396 The
Member State that has to surrender the requested person can only refuse to do so on the
grounds provided in the Framework Decision.397 If an EAW is issued in particular to execute a
decision that has been pronounced in the absence of the person against whom it was directed,
See for example S. Peers, ‘The EU’s Accession to the ECHR: The Dream Becomes a Nightmare’ (2015)
Vol. 16 Issue 1 German Law Journal 220-221 and the blogs mentioned in footnote 17
391 Title V of Part Three TFEU, see for example Article 67(3) and (4), Article 70 TFEU, mentioning ‘mutual
recognition’, which presupposes mutual trust between the Member States
392 H. Battjes, E. Brouwer, P. de Morree and J. Ouwekerk ‘The Principle of Mutual Trust in European
Asylum, Migration, and Criminal law, Reconciling Trust and Fundamental Rights’ Meijers Committee,
(FORUM Institute for Multicultural Affairs, Utrecht 2011)
393 Joined cases C-411/10 and C-493/10 N. S. v. Secretary of State for the Home Department and M. E. and
Others v. Refugee Applications Commissioner and Minister for Justice, Equality and Law Reform [2011]
ECLI:EU:C:2011:865, para. 199
394 A. Kornezov, ‘The Area of Freedom, Security and Justice in the Light of the EU Accession to the ECHR—
Is the Break-up Inevitable?’ (2013) Vol. 15 Cambridge Yearbook of European Legal Studies, 230; See for
example Article 21(1) Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning
jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of
parental responsibility, repealing Regulation (EC) No 1347/2000 [2003] OJ L 338/1: “A judgment given in
a Member State shall be recognised in the other Member States without any special procedure being
required”
395 Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the
surrender procedures between Member States [2002] OJ L 190 (hereafter ‘Framework Decision on the
European Arrest Warrant’)
396 Article 1(1) Framework Decision on the European Arrest Warrant
397 Article 3 Framework Decision on the European Arrest Warrant
390
70
the Framework Decision provides that a Member State cannot refuse the execution of the EAW
as long as the conditions listed there are met.398 This relies on mutual trust because it
presupposes that in the circumstances described by the Framework Decision the procedural
rights of a person (as ensured by the Charter) have been observed.399
149.
Another example of mutual trust under EU law of importance in the context of accession
to the ECHR can be found in asylum matters governed by the Dublin system. The Dublin III
Regulation aims at designating one Member State responsible to deal with an application for
international protection by a non-EU national asylum seeker.400 This responsible Member State
is under the obligation to take charge of the application, and to ‘take back’ the applicant if the
latter brings an application or is located on the territory of another Member State.401 This is
where the principle of mutual trust comes in: the Member State that has to send an applicant
back to the responsible Member State is required to do so, based on the trust that the other
Member States protect the rights of asylum seekers in line with international and European
(human rights) standards.402 A Member State can only refuse to send an applicant to another
Member State when there are systemic flaws in the latters protection of asylum seeker rights.403
Not just any risk of human rights violations discharges a Member State of its obligation under
the Dublin III Regulation. There should be a systemic deficiency resulting in a breach of Article 4
of the Charter in the responsible Member State.404
Article 4a(1) Framework Decision on the European Arrest Warrant; Case C399/11 Stefano Melloni v.
Ministerio Fiscal, o.c., para. 61
399 K. Lenaerts, ‘The principle of mutual recognition in the Area of Freedom, Security and Justice’, the
fourth annual Sir Jeremy Lever lecture, University of Oxford, 30 January 2015, 26,
<http://1exagu1grkmq3k572418odoooym.wpengine.netdna-cdn.com/wpcontent/uploads/2015/02/The-Principle-of-Mutual-Recognition-in-the-area-of-Freedom-Security-andJustice.pdf> (accessed 29 March 2015)
400 Regulation (EU) No. 604/2013 of the European Parliament and of the Council of 26 June 2013
establishing the criteria and mechanisms for determining the Member State responsible for examining an
application for international protection lodged in one of the Member States by a third-country national or
a stateless person (recast) [2013] OJ L 180/31 (hereafter ‘Dublin III Regulation’)
401 Article 18 Dublin III Regulation
402 E. Brouwer, ‘Mutual trust and the Dublin Regulation: Protection of Fundamental Rights and the Burden
of Proof’ (2013) Vol. 9 No. 1 Utrecht Law Review 138
403 Article 3(2) paragraph 2 Dublin III Regulation reads: “Where it is impossible to transfer an applicant to
the Member State primarily designated as responsible because there are substantial grounds for believing
that there are systemic flaws in the asylum procedure and in the reception conditions for applicants in that
Member State, resulting in a risk of inhuman or degrading treatment within the meaning of Article 4 of the
Charter of Fundamental Rights of the European Union (...)”. The wording of this Article is grounded on the
reasoning of the CJEU in Joined cases C-411/10 and C-493/10 N. S. v. Secretary of State for the Home
Department and M. E. and Others v. Refugee Applications Commissioner and Minister for Justice, Equality and
Law Reform [2011] ECLI:EU:C:2011:865
404 As previously confirmed in Joined cases C-411/10 and C-493/10 N. S., o.c., paras. 82 and 86; Case C394/12 Shamso Abdullahi v. Bundesasylamt [2013] ECLI:EU:C:2013:813, para 62
398
71
150.
In Opinion 2/13 the CJEU confirms that mutual trust is a fundamental principle of EU law
and continues to explain that it consists out of two parts.405 Firstly the Member States cannot
require each other to provide a higher level of fundamental rights protection than what is
provided for under EU law.406 Secondly, a Member State is not allowed to check whether other
Member States have “in a specific case, observed the fundamental rights guaranteed by the EU”.407
According to the CJEU, after accession the ECHR would interfere with the second aspect, because
it would require Member States to check whether other Member States observe fundamental
rights in specific cases.408 The presumption that all Member States observe the EU standards of
fundamental rights protection in specific AFSJ matters clashes with the purpose and nature of
the ECHR. The ECtHR investigates in every admissible case before it whether a High Contracting
Party has violated the ECHR.
151.
This different approach of the ECtHR became apparent in its case law with regards to the
Dublin system. The ECtHR recently confirmed in Tarakhel that a High Contracting Party violates
Article 3 ECHR by sending an asylum seeker to another state when “the person concerned faces a
real risk of being subjected to torture or inhuman or degrading treatment or punishment in the
receiving country”.409 As was set out in number 149 under EU law a Member State can only refuse
to send back an asylum seeker to another Member State if there are systemic deficiencies in the
human rights protection offered by the latter. These divergent positions under EU law and under
the ECHR on the obligations of Member States under the Dublin III Regulation would present
difficulties on the part of the CJEU post-accession to the ECHR. Following the Haegeman
doctrine, the ECHR would become an integral part of EU law.410 The systemic deficiency case law
of the CJEU and the corresponding provisions of the Dublin III Regulation would then formally
clash with the standards of the ECtHR.411
152.
The DAA does not eliminate the obligation for the Member States under the ECHR to
check whether the other Member States observe human rights in cases that are governed by the
principle of mutual trust. Consequently, according to the CJEU, “accession is liable to upset the
underlying balance of the EU and undermine the autonomy of EU law.”412 Assumingly, the CJEU
requires that situations where a Member State has to assume (or trust) that another Member
Opinion 2/13, o.c., para. 191
Ibid., para. 192
407 Ibid., para. 192
408 Ibid., para. 194
409 Tarakhel v. Zwitserland (App. No. 29217/12) ECHR 2014, para. 93, emphasis added
410 Case 181/73 Haegeman v. Belgian State [1974] ECLI:EU:C:1970:114
411 D. Halberstam ‘It's the autonomy, stupid! A modest defense of Opinion 2/13 on EU accession to the
ECHR, and the way forward’ (2015) 16 German Law Journal 130
412 Opinion 2/13, o.c., para. 194
405
406
72
State has observed the level of fundamental rights protection as required under EU law should
be excluded from review by the ECtHR for the autonomy of EU law to be preserved.
153.
A possible solution for the preservation of the current mutual trust principle might be
again to introduce a disconnection clause.413 Such a clause would ensure that the Member States
in their internal EU relations would still be bound by the principle of mutual trust, and not by the
principles of the ECHR. As argued by Kornezov, this would entail that the Member State that
under EU law has to rely on the presumption that another Member State observed human rights
would not be called into question, while that second Member State would still be subject to full
scrutiny by the ECtHR.414 In asylum cases for example, the Member State that has to send back
an asylum seeker to the responsible state would be bound by the principle of mutual trust
instead of its obligations under the ECHR. The responsible State under the Dublin III Regulation
on the other hand could still be held responsible by the ECtHR for violations of the ECHR with
regards to the asylum seeker.
See also number 120
A. Kornezov, ‘The Area of Freedom, Security and Justice in the Light of the EU Accession to the ECHR—
Is the Break-up Inevitable?’ (2013) Vol. 15 Cambridge Yearbook of European Legal Studies 252
413
414
73
IV. Protocol No. 16 to the ECHR
154.
On 2 October 2013 the Council of Europe opened the new Protocol No. 16 for
signature.415 The Protocol installs a procedure that allows the highest courts and tribunals of the
High Contracting Parties to ask for advisory opinions from the ECtHR concerning questions
regarding the interpretation and application of the ECHR.416 The advisory opinions to be given
by the ECtHR are not binding upon the court that asks for it.417 It should be noted that only the
highest courts or tribunals have the power to ask for an advisory opinion, and they are not
obliged to do so.418 Since Protocol No. 16 to the ECHR dates from October 2013 whereas the DAA
was concluded several months earlier, it was not taken into account during the negotiations and
is not addressed in the DAA.
155.
Even though so far it has been signed only by 9 of the EU Member States and ratified by
none of them,419 the mere existence of Protocol No. 16 proved to be a way of undermining the
autonomy of the EU legal order. In Opinion 2/13 the CJEU only addresses the issue shortly,
stating that the procedure under Protocol No. 16 would have adverse effects on the preliminary
ruling procedure of Article 267 TFEU.420 This is not very surprising, keeping in mind the position
of the CJEU in Opinion 1/09.421 After accession, the ECHR would form an integral part of EU law
and Protocol No. 16 “could - notably where the issue concerns rights guaranteed by the Charter
corresponding to those secured by the ECtHR - affect the autonomy and effectiveness of the
preliminary rulings procedure.”422 That way, Protocol No. 16 clearly interferes with the essential
characteristics of the EU courts and consequently with the autonomy of the EU legal order.
156.
It should be noted that yet again the Advocate General and the CJEU come to a different
conclusion regarding the impact on the autonomy of the EU legal order. Advocate General Kokott
confirms that if the Protocol would be ratified by EU Member States, this would have an impact
on the application of Article 267 TFEU.423 However, she points out that the solution lies within
EU law itself. Since the Protocol would, after ratification, become part of the national law of the
Protocol No. 16 to the Convention for the Protection of Human Rights and Fundamental Freedoms, 2
October 2013, CETS No. 214
416 Protocol No. 16 Article 1
417 Protocol No. 16, Article 5
418 Protocol No. 16, Draft Explanatory Report para. 7-8,
<http://conventions.coe.int/Treaty/Commun/QueVoulezVous.asp?NT=214&CM=8&DF=17/03/2015&CL
=ENG>
419 This is the situation on 17 March 2015, signed by: the Netherlands, France, Italy, Romania, Lithuania,
Finland, Slovenia, Slovakia and Estonia.
420 Opinion 2/13, o.c., para. 197
421 Opinion 1/09, o.c.
422 Opinion 2/13, o.c., para. 197
423 View of Advocate General Kokott, Opinion 2/13, o.c., para. 139
415
74
Member States, it would always be subject to the primacy of EU law, including Article 267
TFEU.424 Consequently the Member State courts would be obliged to give preference to Article
267 TFEU over the provisions of Protocol No. 16 to the ECHR.
157.
Nevertheless, apparently this would not be sufficient for the CJEU to protect the
autonomy of the EU legal order: the DAA should somehow deal with Protocol No. 16 expressly. It
has been suggested to add a binding unilateral declaration to Protocol No. 16 that would make
the ECtHR refuse the request for an advisory opinion from a national court when the posed
question would involve EU law.425
158.
It could be argued that the problem of Protocol No. 16 is not related to the accession of
the EU to the ECHR and that if it would undermine Article 267 TFEU, it would do so with or
without accession.426 Halberstam on the other hand reminds us of the fact that after accession
the ECHR would become an integral part of EU law, therefore the CJEU would be the competent
court to answer preliminary questions on its interpretation for issues falling under the scope of
EU law.427 After accession the risk would therefore exist that a reference to the ECtHR would for
example call into question the compatibility of EU law with the ECHR, a matter which would
then primarily fall under the jurisdiction of the CJEU.428
159.
To conclude, a critical remark can be added: does Protocol No. 16 uncover a flaw in the
judicial system of the EU legal order at the same time it threatens its autonomy? It seems that,
again, it would be possible to accommodate this issue on an internal EU level. Whether or not a
court refers to the ECtHR for an advisory opinion according to Protocol No. 16 is left to the
choice of this court. The triggering of the preliminary reference procedure under Article 267
TFEU on the other hand is not always left to the discretion of the Member State court. It has been
argued before in this dissertation that making it mandatory for a Member State court in last
instance to refer to the CJEU for a preliminary ruling in cases where the compatibility of EU law
with the ECHR is at issue would strengthen the procedure of Article 267 TFEU.429 That way,
Protocol No. 16 could be used by the Member State courts whenever their domestic law is at
stake, but it would be ensured that the CJEU would be involved before the ECtHR whenever a
Ibid., para. 141
D. Halberstam ‘It's the autonomy, stupid! A modest defense of Opinion 2/13 on EU accession to the
ECHR, and the way forward’ (2015) 16 German Law Journal 122
426 View of Advocate General Kokott, Opinion 2/13, o.c., para. 140; P. Eeckhout, ‘Opinion 2/13 on EU
Accession to the ECHR and Judicial Dialogue – Autonomy or Autarky?’, Jean Monnet Working Paper 01/15,
<http://www.jeanmonnetprogram.org/papers/15/eeckhout.html> (accessed 27 April 2015), 18
427 D. Halberstam ‘It's the autonomy, stupid! A modest defense of Opinion 2/13 on EU accession to the
ECHR, and the way forward’ (2015) 16 German Law Journal, 121
428 Ibid., 121-122; See also numbers 91-93 on the necessity of a prior involvement procedure, which is
meant to ensure that the CJEU can deal with this compatibility before the ECtHR.
429 See number 99
424
425
75
question relating to EU law arises. That way, the exclusive jurisdiction of the CJEU is maintained,
and no additional steps regarding the ECHR system are required. This seems ever more
convincing given the importance of the preliminary reference procedure, which is, according to
the CJEU “essential for the preservation of the Community character of the law established by the
Treaties” and “aims to ensure that, in all circumstances, that law has the same effect in all Member
States.”430
430
76
Opinion 1/09, o.c., para. 83, confirmed by the CJEU in Opinion 2/13, o.c., para. 176
Concluding observations
I. THE
IMPACT OF ACCESSION TO THE
AUTONOMY OF THE EU LEGAL ORDER
ECHR
ON THE
Part I of this dissertation explained how the CJEU defines and delimits the concept ‘autonomy of
the EU legal order’. It also provided an overview of the consequences this approach of the CJEU
brings for accession to the ECHR. Part II focussed on the DAA, which was meant to untangle all
issues surrounding accession, including those involving the autonomy of EU law. As became
clear from Opinion 2/13, the DAA failed to meet the requirements of the CJEU. From the above
analysis can be concluded that accession to the ECHR under the conditions of the DAA would
interfere with the autonomy of the EU legal order in the following ways.
First, the primacy, unity and effectiveness of EU law would be affected. This would be the case
because under the ECHR a Member State would be required to check whether another Member
State observed human rights in situations where under EU law it would have to rely on the
principle of mutual trust. The same goes for the Melloni case law of the CJEU, which would be
undermined if the Member States would invoke Article 53 ECHR as a justification to disapply EU
law to meet a national standard of human rights protection. The DAA should explicitly deal with
these issues, possibly through a disconnection clause that would ensure that the Member States
would still be governed exclusively by EU law in those areas that fall within its scope of
application.
Second, the allocation of powers under EU law would be affected. Firstly, Article 3(7) DAA
undermines the autonomy of the EU legal order because it allows the ECtHR to assess the
division of competences under EU law when it would decide to hold either a Member State or
the EU responsible for an ECHR violation by a provision of EU law. Secondly, under Article 3(5)
DAA the ECtHR would have to decide whether it is plausible that the conditions for triggering
the co-respondent mechanism are met when deciding on the request of the EU or a Member
State to become a co-respondent. The co-respondent mechanism should therefore be amended
to ensure that (a) the ECtHR could not have the final word in the decision on whether or not a
party can become a co-respondent, and (b) under no circumstance the ECtHR could hold only
one party responsible when the conditions of the co-respondent mechanism are met.
Third, the ECtHR is not precluded from interpreting EU law. This would be the case when the
ECtHR would have to decide on the basis of the case law of the CJEU whether or not it would be
necessary to start the prior involvement procedure. The DAA should therefore ensure that this
decision would not be left to the ECtHR.
77
Fourth, the preliminary reference procedure of Article 267 TFEU would be negatively affected.
Protocol No. 16 ECHR could be used by the Member States to circumvent the preliminary
reference procedure under EU law. This would affect the position of the CJEU and undermine the
preliminary ruling procedure, a key element of the EU legal order. A unilateral declaration
ensuring that the ECtHR would not deal with questions from Member State courts concerning
EU law could be a solution. It has also been argued that this issue could be resolved on an
internal EU level, by making a preliminary reference to the CJEU by a Member State court in last
instance mandatory when questions arise on the compatibility of EU law with the ECHR.
Fifth, the essential characteristics of the CJEU would not be maintained. The DAA limits the
power of the CJEU in the course of the prior involvement procedure to a validity assessment
when it comes to secondary law. This alters the CJEUs tasks as conferred to it by the Treaties.
Additionally, the jurisdiction of the CJEU is unduly limited because it is not ensured that Article
344 TFEU would be respected by the Member States. Finally, the DAA does not preclude the
ECtHR from reviewing CFSP acts, measures and omissions on their compatibility with the ECHR,
even with regards to those aspects over which the CJEU has no jurisdiction under EU law. To
resolve these issues, the DAA should first of all clarify that the assessment of the CJEU in the
prior involvement procedure extends both to a validity assessment and interpretation of
secondary law. A disconnection clause could provide a safeguard for Article 344 TFEU. The
problem of the CFSP should probably be dealt with by means of a Treaty amendment (either
extending the jurisdiction of the CJEU, or allowing accession rebus sic stantibus).
Besides causing an impact on the envisaged accession and the present DAA, Opinion 2/13 follows
in the footsteps of Opinions 1/76, 1/91, 1/92, 1/00 and 1/09, providing us with further insight on
the concept of autonomy of EU law. In this regard, two elements in particular come to mind.
First there are consequences for other international agreements concluded under EU law. The
CJEU finds that the mere existence of Article 33 ECHR undermines Article 344 TFEU and
requires an explicit exclusion of the Strasbourg court’s jurisdiction to secure its own exclusive
jurisdiction. However, as Advocate General Kokott inferred as well, there are several other
international agreements concluded by the EU with their own dispute settlement mechanism
that do not provide for such an express exclusion of jurisdiction for the benefit of the CJEU.431
The question therefore rises what the consequences will be of this case law for those and future
agreements.
View of Advocate General Kokott, Opinion 2/13, o.c., para. 117; See on this topic . Ø. Johansen, ‘The
Reinterpretation of TFEU Article 344 in Opinion 2/13 and Its Potential Consequences’ (2015) Vol. 16 No. 1
German Law Journal , 169, and the examples of such agreements mentioned at page 176
431
78
Second there are the objections of the CJEU when it comes to allowing external human rights
review by the ECtHR of CFSP acts, measures and omissions. The CJEU has always been very clear
that autonomy entails that another court or tribunal cannot have jurisdiction over those aspects
falling within its exclusive jurisdiction. From the non-acceptance by the CJEU of ECtHR review of
the CFSP one may conclude that autonomy at the same time entails that another court or
tribunal cannot have jurisdiction over those areas of EU law that fall outside the jurisdiction of
the CJEU. Otherwise, EU law might be determined outside the EU itself, by an ‘outsider’ court.
This risk is not diminished by the Member State courts having jurisdiction over the relevant EU
law provisions and acting as the competent EU courts.
II. OPINION 2/13: TWO PERSPECTIVES
The constitutional perspective: autonomy preserved
Now that the central research question of this dissertation has been answered, the question
rises why the DAA contained so many flaws in the view of the CJEU. At first glance, the easy way
out would be to say that the negative tone of the CJEU in Opinion 2/13 demonstrates the
unwillingness of the CJEU to accept accession and the external control of the ECtHR. A closer
look at the arguments of the CJEU regarding the autonomy and specific characteristics of the EU
legal order have revealed that the position of the CJEU may not be as defensive (or possessive)
as might be perceived. The autonomy principle, though its roots lie within the Treaties, has been
developed by the CJEU in consistent case law. The importance of its preservation has been
emphasised in Article 6(2) TEU and other legal instruments surrounding accession to the ECHR.
There are parts of the DAA that were bound to be found problematic by the CJEU. An example is
the provision in Article 3(7) DAA, which allows the ECtHR to look into the division of
competences under EU law. Any superficial analysis of Opinion 1/91 can reveal the interference
of such provision with the autonomy of the EU legal order. It is difficult to see how the drafters
could have missed this. The same comment can be made with regards to the aspects of the prior
involvement procedure that the CJEU found incompatible with the autonomy of the legal order.
The CJEU itself requested such a mechanism but did not specify how it should have been
designed. Would it not have been possible during the negotiations to have more input from the
Luxembourg judges? It seems that now the only way forward is to reopen negotiations and
adapt the DAA to the requirements of the CJEU. This might prove to be a difficult operation, since
the non-EU Contracting Parties to the ECHR might not be too keen on making changes on years
of work to meet the (for what may be perceived externally as unreasonable) conditions set out
on the side of the EU.
79
In a way, fundamental rights development in the EU legal order and autonomy have always
come hand in hand. The CJEU needs fundamental rights to confirm its own legitimacy and that of
the autonomous legal order towards national constitutional courts and the ECtHR.432 In the past,
the CJEU has been criticised for its approach to human rights and has been accused of not taking
them seriously.433 Given the references of the CJEU to the Charter, the ECHR and the general
principles of EU law in its case law one can hardly argue that at present such a thesis holds true.
However, it remains so that “the Court is not a human rights court: it is the supreme court of the
Union.”434 In that regard, the CJEU undeniably fulfilled its task in Opinion 2/13. While it is true
that Article 6(2) TEU states that the EU shall accede to the ECHR, it cannot do so if there would
be an impact on the autonomy of the EU legal order, and it is up to the CJEU to ensure that such
impact is avoided.
The human rights perspective: a missed opportunity?
From a constitutional perspective it seems that one can hardly criticise the firm stance of the
CJEU in Opinion 2/13. However, it becomes a different story when one takes into account the
difficulty such an approach poses for the participation of the EU on the international scene.
International organisations and third countries are not only confronted with the specific nature
of the EU, sometimes they are even required to adapt to it. In the context of the ECHR these
consequences are perceived as more problematic given its specific purpose to protect human
rights.
The goal of EU accession to the ECHR is to have an enhanced and more uniform development of
fundamental rights protection. With Opinion 2/13 the hope of a swift accession was wiped away,
and even though Article 6(2) TEU contains an obligation for the EU to accede to the ECHR it does
not provide a deadline. The EU and the High Contracting Parties of the ECHR will have to return
to the negotiating table and it is difficult to predict how long it would take to reach an
agreement. In the meantime – as Spielmann, President of the ECtHR puts it – “the principal
victims will be those citizens whom this opinion (no. 2/13) deprives of the right to have acts of the
I. Govaere, ‘The importance of inernational developments in the case law of the European Court of
Justice: Kadi and the autonomy of the EC legal order’ in M. Hiscock and W. van Caenegem (eds.) The
internationalisation of law (Edwar Elgar Publishing Limited, Cheltenham 2010) 198
433 J. Coppel and A. O’Neill, ‘The European Court of Justice: taking rights seriously?’ (1992) 29 CMLR 669692
434 This statement was made by president of the CJEU Skouris in the plenary debate of the closing session
of the FIDE Conference of 2014, as referred to by Besselink in L. F.M. Besselink, ‘Acceding to the ECHR
notwithstanding the Court of Justice Opinion 2/13’, <http://www.verfassungsblog.de/acceding-echrnotwithstanding-court-justice-opinion-213/#.VUDoUSHtmko> (accessed 29 April 2015)
432
80
European Union subjected to the same external scrutiny as regards respect for human rights as
that which applies to each member State.”435
Not only has Opinion 2/13 blocked accession for now, it has also set the standards for the
negotiators a great deal higher. During the negotiating process of the DAA the non-EU High
Contracting Parties to the ECHR had already underscored that accession should not affect the
specific nature and effectiveness of the ECHR system.436 It is questionable whether the demands
of the CJEU can be met without undermining some of the key principles of the ECHR system. If
the EU would accede to the ECHR, to maintain the autonomy of the EU legal order it would be
necessary to withdraw several aspects of EU law from the external scrutiny of the ECtHR. This
might be required for those parts of the CFSP where the CJEU has no jurisdiction (if the path of a
Treaty amendment is not chosen and a reservation would be made possible) and for areas falling
under the principle of mutual trust. The question remains whether the non-EU ECHR parties
would be willing to accept such exceptions on the part of the EU. At the same time it is debatable
whether it would even be desirable, if the EU would accede to the ECHR, to exclude these
elements from the jurisdiction of the ECtHR.
It has already been argued in this dissertation that CFSP acts, measures and omissions hold
potential human rights violations. Review by the ECtHR would ensure that in those situations
where a victim cannot turn to the CJEU, there would still be final recourse in Strasbourg. A
critical note can also be made with regards to the principle of mutual trust. It cannot be denied
that mutual trust is important for the smooth cooperation of the Member States, particularly in
the area of Freedom, Security and Justice. Even though it is not to be applied blindly by the
Member States, excluding aspects of EU law in which the Member States are bound by this
principle from the review of the ECtHR seems to create problems in terms of fundamental rights
protection. It leaves an area in which human rights violations are not unlikely to occur
depending on the presumption that the Member States will respect the standards that are set by
the EU.437 The past has proven that, notwithstanding national constitutional protection,
Foreword by D. Spielmann, President of the ECtHR in the Annual Report of 2014 of the ECtHR, 6,
<http://www.echr.coe.int/Documents/Annual_Report_2014_ENG.pdf> (accessed 27 April 2015)
436 Common paper of Andorra, Armenia, Azerbaijan, Bosnia-Herzegovina, Iceland, Liechtenstein, Monaco,
Montenegro, Norway, Serbia, Switzerland, Russian Federation, Turkey and Ukraine on major concerns
regarding the Draft revised Agreement on the Accession of the European Union to the European
Convention on Human Rights (47+1(2013)003) 21 January 2013,
<http://www.coe.int/t/dghl/standardsetting/hrpolicy/Accession/Working_documents/47_1(2013)003_
EN.pdf> (accessed 27 April 2015)
437 P. Eeckhout, ‘Opinion 2/13 on EU Accession to the ECHR and Judicial Dialogue – Autonomy or
Autarky?’, Jean Monnet Working Paper 01/15, 15-16
<http://www.jeanmonnetprogram.org/papers/15/eeckhout.html> (accessed 27 April 2015)
435
81
implementation of the Charter and membership to the ECHR, Member States can fail to provide
sufficient human rights protection in areas relying on mutual trust.438
Additionally, with regards to the particular issue of divergent approaches in asylum matters
under the Dublin System, it seems that accession might be the solution and not so much the
problem. The UK has openly criticised the position of the CJEU, calling it a “remarkable
conclusion” at the least that an asylum seeker would have to be returned to a Member State
where he would face the substantial risk to be suffer from fundamental rights violations, only
because those violations would not be part of a systemic deficiency in fundamental rights
protection.439 At the same time, the divergent approach under EU law and the ECHR creates
incoherence and uncertainty for the Member States that have to abide by both standards.
Accession might come as a solution for these problems by giving precedence to the real risk
approach of the ECHR.440
As a final conclusion reference can be made back to Chapter I of the first part of this dissertation.
It seems that the saga of accession to the ECHR and the problems for EU autonomy has brought
us a strong confirmation of the principles that were set out half a century ago by the CJEU. The
Court in Luxembourg underlined what it means for the EU legal order to be autonomous: EU law
is adopted and determined by the EU itself and there is only one competent court to ensure its
uniform development and guard the legal order; the CJEU itself.
Joined cases C-411/10 and C-493/10 N. S. v. Secretary of State for the Home Department and M. E. and
Others v. Refugee Applications Commissioner and Minister for Justice, Equality and Law Reform [2011]
ECLI:EU:C:2011:865, paras. 87-89
439 R (on the application of EM (Eritrea)) (appellant) v Secretary of State for the Home Department
(respondent) [2014] UKSC 12, para. 37
440 D. Halberstam ‘It's the autonomy, stupid! A modest defense of Opinion 2/13 on EU accession to the
ECHR, and the way forward’ (2015) 16 German Law Journal 131-136
438
82
83
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Case 6/64 Costa v. ENEL [1964] ECLI:EU:C:1964:66
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Case 11/70 Internationale Handelsgesellschaft [1970] ECLI:EU:C:1970:114
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Case 181/73 Haegeman v. Belgian State [1974] ECLI:EU:C:1974:41
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Case 283/81 CILFIT v. Ministry of Health [1982] ECLI:EU:C:1982:335
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Joined cases C-411/10 and C-493/10 N. S. v. Secretary of State for the Home Department and M. E.
and Others v. Refugee Applications Commissioner and Minister for Justice, Equality and Law
Reform [2011] ECLI:EU:C:2011:865
Opinion of Advocate General Bot, Case C399/11 Stefano Melloni v. Ministerio Fiscal [2013]
ECLI:EU:C:2012:600
Case C399/11 Stefano Melloni v. Ministerio Fiscal [2013] ECLI:EU:C:2013:107
84
Case C-617/10 Åklagaren v Hans Åkerberg Fransson [2013] ECLI:EU:C:2013:105
Case C-394/12 Shamso Abdullahi v. Bundesasylamt [2013] ECLI:EU:C:2013:813
Opinion 1/76 Draft Agreement establishing a European laying-up fund for inland waterway
vessels [1977] ECLI:EU:C:1977:63
Opinion 1/91 Draft agreement between the Community, on the one hand, and the countries of the
European Free Trade Association, on the other, relating to the creation of the European Economic
Area [1991] ECLI:EU:C:1991:490
Opinion 1/92 Draft agreement between the Community, on the one hand, and the countries of the
European Free Trade Association, on the other, relating to the creation of the European Economic
Area [1992] ECLI:EU:C:1992:189
Opinion 2/94 Accession by the Community to the European Convention for the Protection of
Human Rights and Fundamental Freedoms [1996] ECLI:EU:C:1996:140
Opinion 1/00 Proposed agreement between the European Community and non-Member States on
the establishment of a European Common Aviation Area [2002] ECLI:EU:C:2002:231
Opinion 1/09 Draft Agreement, Creation of a unified patent litigation system
ECLI:EU:C:2011:123
[2011]
View of Advocate General Kokott, Opinion 2/13 Accession of the European Union to the European
Convention for the Protection of Human Rights and Fundamental Freedoms [2014]
ECLI:EU:C:2014:2475
Opinion 2/13 Accession of the European Union to the European Convention for the Protection of
Human Rights and Fundamental Freedoms [2014] ECLI:EU:C:2014:2454
Cases of the ECtHR
Confederation Française Democratique du Travail v. the European Communities (App no
8030/77) (1978) 13 DR 236
Huvig v. France (Application no. 11105/84) (1990) ECHR A176-B
Cantoni v. France (App. No. 17862/91) ECHR 1996-IV
Matthews v. UK (App. No. 24833/94) ECHR 1999-I
Bosphorus Have Yollari Turzim Ve Ticaret Anonim Sirketi v. Ireland (App. No. 45036/98) ECHR
2005-VI
Behrami and Behrami v. France (App. No. 71412/01) and Saramti V. France, Germany and
Norway (App. No. 78166/01) (ECtHR 2 May 2007)
Connolly v. 15 Member States of the European Union (App no 73274/01) (ECtHR 9 December
2008)
M.S.S. v. Belgium and Greece (App. No. 30696/09) ECHR 2011
Tarakhel v. Zwitserland (App. No. 29217/12) ECHR 2014
85
Cases from other jurisdictions
BVerfGE 37, 271 2 BvL 52/71, Solange I, English version in (1975) 12 CML Rev 275, 307
R (on the application of EM (Eritrea)) (appellant) v Secretary of State for the Home Department
(respondent) [2014] UKSC 12
II. Articles
A. Bailleux, ‘Entre droits fondamentaux et intégration européenne, la Charte des droits
fondamentaux de l’Union européenne face à son destin (C.J.U.E., Stefano Melloni et Åkerberg
Fransson, 26 février 2013)’ (2014) Revue Trimestrielle des Droits de l’Homme 215
R. Baratta, ‘Accession of the EU to the ECHR: the rationale for the ECJ’s prior involvement
mechanism’ (2013) 50 CML Rev 1305
F. Benoit-Rohmer “l’Adhésion de l’Union à la Convention européenne des droits de l’homme”
(2011) No. 184 Journal de droit européen 285
L. F.M. Besselink, ‘The parameters of constitutional conflict after Melloni’, (2014) Vol. 39 Nr. 4
European Law Review 531
R. Böcker, ‘Gaten dichten, toetreding van de Europese Unie tot het EVRM’ (2013) 24 Nederlands
Juristenblad 1560
E. Brouwer, ‘Mutual trust and the Dublin Regulation: Protection of Fundamental Rights and the
Burden of Proof’ (2013) Vol. 9 No. 1 Utrecht Law Review 135
J. Coppel and A. O’Neill, ‘The European Court of Justice: taking rights seriously?’ (1992) 29 CMLR
669
G. de Búrca, ‘After the EU Charter of Fundamental Rights: The Court of Justice as a human rights
adjudicator?’ (2013) Vol. 20 Maastricht Journal of European and Comparative Law 168
E.F. Defeis, ‘Human Rights, the European Union, and the Treaty route: from Maastricht to Lisbon’
(2012) 35 Fordham International Law Journal 1207
B. de Witte, ‘European Union Law: How Autonomous is its Legal Order?’, (2010) Vol. 65 Issue 1
Zeitschrift für öffentliches Recht 141
S. Douglas-Scott, ‘The European Union and Human Rights after the Treaty of Lisbon’ (2011) 11
Human Rights Law Review 645
C. Eckes, ‘EU Accession to the ECHR: Between Autonomy and Adaptation’ (2013) 76(2) Modern
Law Review 254
P.Gragl, ‘A Giant Leap for Eurpean Human Rights? The final agreement on the European Union’s
Accession to the European Convention on Human Rights’ (2014) 51 CMLR 13
X. Groussot, T. Lock and L. Pech, ‘EU accession to the European Convention on Human Rights: a
legal assessment of the Draft Accession Agreement of 14 october 2011’ (2011) Founation
Robert Schuman European issues No. 218, <http://www.robert-schuman.eu/en/doc/questionsd-europe/qe-218-en.pdf> (accessed 26 April 2015)
86
D. Halberstam ‘It's the autonomy, stupid! A modest defense of Opinion 2/13 on EU accession to
the ECHR, and the way forward’ (2015) 16 German Law Journal 105
J.P. Jacqué, ‘The accession of the European Union to the European Convention on Human rights
and fundamental freedoms’ (2011) 48 CML Rev 995
S. Ø. Johansen, ‘The Reinterpretation of TFEU Article 344 in Opinion 2/13 and Its Potential
Consequences’ (2015) Vol. 16 No. 1 German Law Journal 169
A. Kornezov, ‘The Area of Freedom, Security and Justice in the Light of the EU Accession to the
ECHR—Is the Break-up Inevitable?’ (2013) Vol. 15 Cambridge Yearbook of European Legal
Studies 227
J. Kralova, ‘Comments on the Draft Accession Agreement on the accession of the European Union
to the Convention for the Protection of Human Rights and Fundamental Freedoms’ (2011) 2
Czech Yearbook of International Law 127
M. Kuijer, ‘The accession of the European Union to the ECHR: a gift for the ECHR’s 60th
anniversary or an unwelcome intruder at the party?’ (2011) Vol. 3 No. 4 Amsterdam Law Forum
17, <http://amsterdamlawforum.org/article/view/240> (accessed 25 April 2015)
A. Lazowski and R. Wessel, ‘When Caveats Turn into Locks: Opinion 2/13 on Accession of the
European Union to the ECHR’ Vol. 16 Issue 1 German Law Journal 179
T. Lock, ‘Beyond Bosphorus: the European Court of Human Rights’ Case law on the
Responsibility of Member States of International Organisations under the European Convention
on Human Rights’ <http://epubs.surrey.ac.uk/266202/3/Lock_Beyond_Bosphorus%202.pdf>
(accessed 18 October 2014)
T. Lock ‘EU accession to the ECHR: implications for judicial review in Strasbourg’ (2010) Vol. 35
European Law Review 777
T. Lock, ‘Walking on a tightrope: the draft ECHR accession agreement and the autonomy of the
EU legal order’ (2011) 48 CML Rev 1025
T. Lock, ‘End of an epic? The draft agreement on the EU’s accession to the ECHR’ (2012) 31
Yearbook of European Law 162
S. Peers, ‘The EU’s Accession to the ECHR: The Dream Becomes a Nightmare’ (2015) Vol. 16
Issue 1 German Law Journal 213
J. Polakiewicz, ‘EU law and the ECHR: will the European Union’s accession square the circle?’
(2013) 6 European Human Rights Law Review 592, also available at
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2331497> (accessed 27 April 2015)
C. Van de Heyning, ‘De Toetreding van de EU tot het EVRM: goede afspraken maken goede
vrienden’ (2012) Tijdschrift voor Constitutioneel Recht 230
P. Van Elsuwege, ‘New Challenges for Pluarilst Adjudication after Lisbon’ (2012) Vol. 30/2
Netherlands Quarterly of Human Rights 195
X, Editorial comments, ‘The EU’s Accession to the ECHR – a “NO” from the ECJ!’ (2015) Vol. 52
Issue 1 CMLR 1
87
III. Books and contributions
R. Barents, The Autonomy of Community Law (Kluwer Law International, The Hague 2004)
P. Craig and G. De Búrca, EU law, text, cases, and materials (Oxford University Press, New York
2011)
M. Cremona, “Disconnection clauses in EU law and practice” in C. Hillion and P. Koutrakos (eds.)
Mixed Agreements Revisited: the EU and its Member States in the World (Hart Publishing Ltd.,
Oxford 2010)
S. Douglas-Scott, ‘The Court of Justice of the European Union and the European Court of Human
Rights after Lisbon’ in S. De Vries, U. Bermitz. and S. Weatherill (eds.) The protection of
Fundamental Rights in the EU after Lisbon (Hart Publishing Ltd., Oxford 2013) 153
I. Govaere, ‘The importance of inernational developments in the case law of the European Court
of Justice: Kadi and the autonomy of the EC legal order’ in M. Hiscock and W. van Caenegem
(eds.) The internationalisation of law (Edwar Elgar Publishing Limited, Cheltenham 2010) 187
I. Govaere, ‘Beware of the Trojan Horse: Dispute Settlement in (Mixed) Agreements and the
autonomy of the EU legal order’ in C. Hillion and P. Koutrakos (eds.) Mixed Agreements Revisited:
the EU and its Member States in the World (Hart Publishing Ltd., Oxford 2010) 187
I. Govaere, De rechtsorde na Lissabon: hoe eigen, hoe autonoom? Thorbeckecollege 35 (Kluwers,
Mechelen 2012)
P. Gragl, The accession of the European Union to the European Convention on Human Rights (Hart
Publishing, Oxford 2013)
D.J. Harris, M. O’Boyle, E.P. Bates and C.M. Buckley, Law of the European Convention on Human
Rights (Oxford University Press, Oxford 2014)
C. Hillion, ‘A powerless court? The European Court of Justice and the Common foreign and
Security Policy’ in M. Cremona and A. Thies (eds.) The European Court of Justice and external
relations law (Hart Publishing, Oxford 2013) 47
P. Koutrakos, ‘The European Union’s Common Foreign and Security Policy after Lisbon’ in
D.Ashiagbor, N. Countouris, I. Lianos (eds.) The European Union after the Treaty of Lisbon
(Cambridge University Press, Cambridge 2012) 185
J. Vande Lanotte and Y. Haeck, Handboek EVRM (Intersentia, Antwerpen 2005) 122
J.W. van Rossem, ‘The Autonomy of EU Law: More is Less?’ in R. A. Wessel and S. Blockmans
(eds.) Between Autonomy and Dependence, The EU Legal Order Under the Influence of
International Organisations (Asser Press, The Hague 2013) 13
IV. Working papers, conferences, speeches
H. Battjes, E. Brouwer, P. de Morree and J. Ouwekerk ‘The Principle of Mutual Trust in European
Asylum, Migration, and Criminal law, Reconciling Trust and Fundamental Rights’ Meijers
Committee, (FORUM Institute for Multicultural Affairs, Utrecht 2011)
P. Eeckhout, ‘Opinion 2/13 on EU Accession to the ECHR and Judicial Dialogue – Autonomy or
Autarky?’, Jean Monnet Working Paper 01/15,
<http://www.jeanmonnetprogram.org/papers/15/eeckhout.html> (accessed 27 April 2015)
88
K. Lenaerts, ‘The principle of mutual recognition in the Area of Freedom, Security and Justice’,
the fourth annual Sir Jeremy Lever lecture, University of Oxford, 30 January 2015,
<http://1exagu1grkmq3k572418odoooym.wpengine.netdna-cdn.com/wpcontent/uploads/2015/02/The-Principle-of-Mutual-Recognition-in-the-area-of-FreedomSecurity-and-Justice.pdf> (accessed 29 March 2015)
J. Martin Y Perez De Nanclares, ‘The accession of the European Union to the ECHR: More than
just a legal issue’ (2013) Working Paper IDEIR No. 15,
<https://www.ucm.es/data/cont/docs/595-2013-11-07-the%20accesion.pdf> (accessed 26
April 2015)
I. Pernice, ‘The Autonomy of the EU Legal Order — Fifty Years After Van Gend’ in 50th
anniversary of the judgment in Van Gend en Loos, Conference Proceedings, Luxembourg 13 May
2013
D. Ritleng, ‘The accession of the European Union to the European Convention on Human Rights
and Fundamental Freedoms A Threat to the Specific Characteristics of the European Union and
Union Law?’, Working Paper 2012:1 Uppsala Faculty of Law,
<http://www.jur.uu.se/LinkClick.aspx?fileticket=NQjcsCLVLr8%3D&tabid=5502&language=svSE> (accessed 4 March 2015)
C. Timmermans, ‘L'adhésion de l'Union Européenne à la Convention européenne des Droits de
l'homme’, Audition organisée par la Commission des affaires constitutionnelles, 18 mars 2010,
<http://www.europarl.europa.eu/document/activities/cont/201003/20100324ATT71235/20
100324ATT71235EN.pdf> (accessed 26 April 2015)
V. Blogs
L. F.M. Besselink, ‘Acceding to the ECHR notwithstanding the Court of Justice Opinion 2/13’,
<http://www.verfassungsblog.de/acceding-echr-notwithstanding-court-justice-opinion213/#.VUDoUSHtmko> (accessed 29 April 2015)
S. Douglas-Scott, ‘Opinion 2/13 on EU accession to the ECHR: a Christmas bombshell from the
European Court of Justice’ <http://ukconstitutionallaw.org/2014/12/24/sionaidh-douglasscott-opinion-213-on-eu-accession-to-the-echr-a-christmas-bombshell-from-the-europeancourt-of-justice/> (accessed 26 April 2015)
T. Lock, ‘Oops! We did it again – the CJEU’s Opinion on EU Accession to the ECHR’,
<http://www.verfassungsblog.de/en/oops-das-gutachten-des-eugh-zum-emrk-beitritt-dereu/#.VStx1vmsX3Z> (accessed 26 April 2015)
S. Peers, ‘The CJEU and the EU’s accession to the ECHR: a clear and present danger to human
rights protection’, <http://eulawanalysis.blogspot.be/2014/12/the-cjeu-and-eus-accession-toechr.html > (accessed 26 April 2015)
VI. Meeting reports and working documents
European Union
Council of the European Union document (10568/10) 2 June 2010, ‘Draft Council Decision
authorising the Commission to negotiate the Accession Agreement of the European Union to the
European Convention for the protection of Human Rights and Fundamental Freedoms (ECHR) –
Involvement of ECJ regarding the compatibility of legal acts of the Union with fundamental rights
89
(Paragraph 11 of the Negotiating directives)’,
<http://register.consilium.europa.eu/doc/srv?l=EN&f=ST%2010568%202010%20INIT>
(accessed 26 April 2015)
Council of the European Union document (10569/10), 2 June 2010, ‘Draft Council Decision
authorising the Commission to negotiate the Accession Agreement of the European Union to the
European Convention for the protection of Human Rights and Fundamental Freedoms (ECHR) –
Co-respondent mechanism (Paragraph 10 of the Negotiating directives)’
<http://register.consilium.europa.eu/doc/srv?l=EN&f=ST%2010569%202010%20INIT>
(accessed 26 april 2015)
Working document of the European Commission (DS 1930/10) 10 January 2011, ‘Previous
involvement of the Court of Justice in the context of the accession of the European Union to the
European Convention for the protection of Human Rights and Fundamental Freedoms’,
<https://www.eerstekamer.nl/eu/documenteu/ds_1930/10_previous_involvement_of_the/f=/v
imuezriawbg.pdf> (accessed 26 April 2015)
Friends of Presidency (FREMP) working document (DS 1675/11) 4 November 2011, ‘Accession
of the European Union to the ECHR – Working document from the Presidency’,
<http://www.statewatch.org/news/2011/nov/eu-council-echr-accession-fop-ds-1675-11.pdf>
Council of the European Union document (16385/11) 8 November 2011, ‘Accession of the
European Union to the European Convention for the protection of Human Rights and
Fundamental Freedoms (ECHR): - State of play’
<http://www.statewatch.org/news/2011/nov/eu-council-echr-accession-16385-11.pdf >
(accessed 26 April 2015)
Council of Europe
Steering Committee for Human Rights (CDDH) (DG-II(2002)006), 28 June 2002, ‘Study of
technical and legal issues of a possible EC/EU accession to the European Convention on Human
Rights’,
<http://www.coe.int/t/dghl/standardsetting/hrpolicy/Accession/Working_documents/Study_a
ccession_UE_2002_en.pdf > (accessed 26 April 2015)
Draft elements prepared by the Secretariat on the Procedure before the European Court of
Human Rights (Chapter C of the draft list of issues) (CDDH-UE(2010)12) 12 October 2010,
<http://www.coe.int/t/dghl/standardsetting/hrpolicy/Accession/Working_documents/CDDHUE_2010_12_en.pdf> (accessed 26 April 2015)
NHRI Joint Submission to the CDDH-UE of 3 December 2010, ‘NGOs’ perspective on the EU
accession to the ECHR: the prosposed co-respondent procedure and consultation with civil
society’,
<http://www.coe.int/t/dghl/standardsetting/hrpolicy/Accession/Working_documents/Joint_s
ubmission.pdf> (accessed 26 April 2015)
Draft additional elements prepared by the Secretariat on Procedural means guaranteeing the
prior involvement of the Court of Justice of the EU in cases in which it has not been able to
pronounce on compatibility of an EU act with fundamental rights (CDDH-UE(2011)02) 17
January 2011,
<http://www.coe.int/t/dghl/standardsetting/hrpolicy/Accession/Working_documents/CDDHUE_2011_02_en.pdf> (accessed 26 April 2015)
90
Draft legal instruments on the accession of the European Union to the European Convention on
Human Rights, final version (CDDH-UE(2011)16) 19 July 2011,
<http://www.coe.int/t/dghl/standardsetting/hrpolicy/Accession/Working_documents/CDDHUE_2011_16_final_en.pdf> (accessed 26 April 2015)
Steering Committee for Human Rights (CDDH) (CDDH(2011)009), 14 October 2011, Report to
the Committee of Ministers on the elaboration of legal instruments for the accession of the
European Union to the European Convention on Human Rights,
<http://www.coe.int/t/dghl/standardsetting/hrpolicy/Accession/Meeting_reports/CDDH_201
1_009_en.pdf> (accessed 26 April 2015)
First Negotiation Meeting between the CDDH and the European Commission on the Accession of
the European Union to the European Convention on Human Rights (47+1(2012)R01) 21 June
2012, Meeting report,
<http://www.coe.int/t/dghl/standardsetting/hrpolicy/Accession/Meeting_reports/47_1(2012)
R01Erev2.pdf> (accessed 26 April 2015)
Second Negotiation Meeting between the CDDH ad hoc negotiation group and the European
Commission on the Accession of the European Union to the European Convention on Human
Rights (47+1(2012)R02) 19 September 2012, Meeting report,
<http://www.coe.int/t/dghl/standardsetting/hrpolicy/Accession/Meeting_reports/47_1(2012)
R02final_EN.pdf> (accessed 26 April 2015)
Fourth Negotiation Meeting between the CDDH ad hoc negotiation group and the European
Commission on the Accession of the European Union to the European Convention on Human
Rights, Draft Explanatory report to the Agreement on the Accession of the European Union to the
Convention for the Protection of Human Rights and Fundamental Freedoms (47+1(2013)002) 8
January 2013, Meeting report,
<http://www.coe.int/t/dghl/standardsetting/hrpolicy/Accession/Meeting_reports/CDDHUE_2010_17_RAP_en.pdf>(accessed 26 April 2015)
Common paper of Andorra, Armenia, Azerbaijan, Bosnia-Herzegovina, Iceland, Liechtenstein,
Monaco, Montenegro, Norway, Serbia, Switzerland, Russian Federation, Turkey and Ukraine on
major concerns regarding the Draft revised Agreement on the Accession of the European Union
to the European Convention on Human Rights (47+1(2013)003) 21 January 2013,
<http://www.coe.int/t/dghl/standardsetting/hrpolicy/Accession/Working_documents/47_1(2
013)003_EN.pdf> (accessed 27 April 2015)
Final report to the CDDH (47+1(2013)008rev2), 10 June 2013,
<http://www.coe.int/t/dghl/standardsetting/hrpolicy/Accession/Meeting_reports/47_1(2013)
008rev2_EN.pdf> (accessed 26 April 2015)
VII. Other documents
European Union
Joint Declaration by the Parliament, the Council and the Commission of 5 April 1977 concerning
the protection of fundamental rights and the Convention for the Protection of Human Rights and
Fundamental Freedoms [1977] OJ C103/1
Commission Memorandum (EC) COM (79) 210 final of 2 May 1979, ‘Accession of the European
Communities to the European Convention on Human Rights’ [1979] Bulletin of the European
Communities, Supplement 2/79
91
Discussion document of the Court of Justice of the European Union on certain aspects of the
accession of the European Union to the European convention for the Protection of Human Rights
and Fundamental Freedoms, 5 May 2010,
<http://curia.europa.eu/jcms/upload/docs/application/pdf/2010-05/convention_en.pdf >
(accessed 26 April 2015)
European Parliament Resolution (2009/2241 (INI)) of 19 May 2010 on the institutional aspects
of the accession of the European Union to the European Convention for the Protection of Human
Rights and Fundamental Freedoms [2011] OJ CE161/72
Council of Europe
Parliamentary Assembly of the Council of Europe, Committee on Legal Affairs and Human Rights
report (Doc. 11533) of 18 May 2008 ‘The accession of the European Union/European
Community to the European Convention on Human Rights’
<http://www.europarl.europa.eu/document/activities/cont/201003/20100324ATT71249/20
100324ATT71249EN.pdf> (accessed 25 April 2015)
Joint communication from presidents Costa and Skouris of 24 January 2011,
<http://curia.europa.eu/jcms/upload/docs/application/pdf/2011-02/cedh_cjue_english.pdf>
(accessed 26 April 2015)
Accession by the European Union to the European Convention on Human Rights – Answers to
frequently asked questions,
<http://www.coe.int/t/dghl/standardsetting/hrpolicy/Accession/Accession_documents/EU_ac
cession-QA_updated_2013_E.pdf > (accessed 26 April 2015)
Foreword by D. Spielmann, President of the ECtHR in the Annual Report of 2014 of the ECtHR,
<http://www.echr.coe.int/Documents/Annual_Report_2014_ENG.pdf> (accessed 27 April
2015)
92
93