The big news is that on 18 December 2014 the Court of Justice has handed down its second negative opinion in Opinion 2/13 EU:C:2014:2475 on the accession of the EU to the European Convention on Human Rights.
Back in 1996 the Court had decided in Opinion 2/94 that there was no legal basis in the Treaty at that time for the EU to accede (see the summary of the submissions in that case and the opinion of 28 March 1996). As a consequence of that opinion, Article 6(2) TEU was added to provide a legal basis and states:
2. 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.
The EU and the Council of Europe then spent some time negotiating an agreement between them allowing for accession to the Convention. Once that was done, the Commission asked the Court of Justice, pursuant to its jurisdiction under Article 218 (11) TFEU: “Is the draft agreement providing for the accession of the [EU to the ECHR] compatible with the Treaties?”
The Court’s answer is “no”.
24 Member States (Luxembourg, Malta and Slovenia did not lodge submissions and Croatia was not yet a Member State), the EP, the Council and the Commission all submitted that the draft agreement was compatible (though their reasons differed).
The Opinion handed down on 18 December 2014 in Opinion 2/13 EU:C:2014:2475 is a long and dense one.
The Court of Justice emphasises very strongly the special characteristics of EU law.
The Court held that the founding treaties of the EU, unlike ordinary international treaties, established a new legal order, possessing its own institutions, for the benefit of which the Member States thereof have limited their sovereign rights, in ever wider fields, and the subjects of which comprise not only those States but also their nationals (judgments in van Gend & Loos, 26/62, EU:C:1963:1, p. 12, and Costa, 6/64, EU:C:1964:66, p. 593, and Opinion 1/09, EU:C:2011:123, paragraph 65).
The fact that the EU has a new kind of legal order, the nature of which is peculiar to the EU, its own constitutional framework and founding principles, a particularly sophisticated institutional structure and a full set of legal rules to ensure its operation, has consequences as regards the procedure for and conditions of accession to the ECHR. Thus, accession is subject to compliance with various conditions.
- First, having provided that the EU is to accede to the ECHR, Article 6(2) TEU lays down, in the second sentence, that ‘[s]uch accession shall not affect the Union’s competences as defined in the Treaties’.
- Next, Protocol No 8 EU, which has the same legal value as the Treaties, provides that the accession agreement is to make provision for preserving the specific characteristics of the EU and EU law and ensure that accession does not affect the competences of the EU or the powers of its institutions, or the situation of Member States in relation to the ECHR, or indeed Article 344 TFEU.
- Lastly, by the Declaration on Article 6(2) of the TEU, the Intergovernmental Conference which adopted the Treaty of Lisbon agreed that accession must be arranged in such a way as to preserve the specific features of EU law.
The Court then sets out the parameters of its review.
In performing the task conferred on it by the first subparagraph of Article 19(1) TEU, the Court of Justice must review whether the legal arrangements proposed in respect of the EU’s accession to the ECHR are in conformity with the requirements laid down and, more generally, with the basic constitutional charter, the Treaties (judgment in Les Verts v Parliament, 294/83, EU:C:1986:166, paragraph 23). And for that, the Court must ensure that accession does not affect the specific characteristics of the EU and EU law. Those characteristics include those relating to the constitutional structure of the EU, which is seen in the principle of conferral of powers referred to in Articles 4(1) TEU and 5(1) and (2) TEU, and in the institutional framework established in Articles 13 TEU to 19 TEU.
EU law is also characterised by the fact that it stems from an independent source of law, the Treaties, by its primacy over the laws of the Member States (judgments in Costa, EU:C:1964:66, p. 594, and Internationale Handelsgesellschaft, Case 11-70, EU:C:1970:114, paragraph 3; Opinions 1/91, EU:C:1991:490, paragraph 21, and 1/09, EU:C:2011:123, paragraph 65; and judgment in Melloni, C‑399/11, EU:C:2013:107, paragraph 59), and by the direct effect of a whole series of provisions which are applicable to their nationals and to the Member States themselves (judgment in van Gend & Loos, EU:C:1963:1, p. 12, and Opinion 1/09, EU:C:2011:123, paragraph 65).
Those essential characteristics of EU law have given rise to a structured network of principles, rules and mutually interdependent legal relations linking the EU and its Member States, and its Member States with each other, which are now engaged, as is recalled in the second paragraph of Article 1 TEU, in a ‘process of creating an ever closer union among the peoples of Europe’.
That legal structure is based on the fundamental idea that each Member State shares with all the other Member States, and recognises that they share with it, a set of common values on which the EU is founded, as stated in Article 2 TEU.
Also at the heart of that legal structure are the fundamental rights recognised by the Charter (which, under Article 6(1) TEU, has the same legal value as the Treaties), respect for those rights being a condition of the lawfulness of EU acts, so that measures incompatible with those rights are not acceptable in the EU (see judgments in ERT, C‑260/89, EU:C:1991:254, paragraph 41; Kremzow, C‑299/95, EU:C:1997:254, paragraph 14; Schmidberger, C‑112/00, EU:C:2003:333, paragraph 73; and Kadi and Al Barakaat International Foundation v Council and Commission, C-402/05 and C-415/05, EU:C:2008:461, paragraphs 283 and 284).
The autonomy enjoyed by EU law in relation to the laws of the Member States and in relation to international law requires that the interpretation of those fundamental rights be ensured within the framework of the structure and objectives of the EU (judgments in Internationale Handelsgesellschaft, EU:C:1970:114, paragraph 4, and Kadi and Al Barakaat International Foundation v Council and Commission, EU:C:2008:461, paragraphs 281 to 285). Not only are the institutions, bodies, offices and agencies of the EU required to respect the Charter but so too are the Member States when they are implementing EU law (judgment in Åkerberg Fransson, C‑617/10, EU:C:2013:105, paragraphs 17 to 21).
The pursuit of the EU’s objectives, as set out in Article 3 TEU, is entrusted to a series of fundamental provisions, such as those providing for the free movement of goods, services, capital and persons, citizenship of the Union, the area of freedom, security and justice, and competition policy. Those provisions, which are part of the framework of a system that is specific to the EU, are structured in such a way as to contribute — each within its specific field and with its own particular characteristics — to the implementation of the process of integration that is the raison d’être of the EU itself.
Similarly, the Member States are obliged, by reason, inter alia, of the principle of sincere cooperation set out in the first subparagraph of Article 4(3) TEU, to ensure, in their respective territories, the application of and respect for EU law. In addition, pursuant to the second subparagraph of Article 4(3) TEU, the Member States are to take any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the EU (Opinion 1/09, EU:C:2011:123, paragraph 68 and the case-law cited).
In order to ensure that the specific characteristics and the autonomy of that legal order are preserved, the Treaties have established a judicial system intended to ensure consistency and uniformity in the interpretation of EU law.
It is for the national courts and tribunals and for the Court of Justice to ensure the full application of EU law in all Member States and to ensure judicial protection of an individual’s rights under that law (Opinion 1/09, EU:C:2011:123, paragraph 68 and the case-law cited).
In particular, the judicial system as thus conceived has as its keystone the preliminary ruling procedure provided for in Article 267 TFEU, which, by setting up a dialogue between one court and another, specifically between the Court of Justice and the courts and tribunals of the Member States, has the object of securing uniform interpretation of EU law (judgment in van Gend & Loos, EU:C:1963:1, p. 12), thereby serving to ensure its consistency, its full effect and its autonomy as well as, ultimately, the particular nature of the law established by the Treaties (see, to that effect, Opinion 1/09, EU:C:2011:123, paragraphs 67 and 83).
Having set out those fundamental concepts, the Court finds that the mechanism for accession is incompatible with them in basically five respects.
The autonomy of EU law
The Court points out that where the rights recognised by the Charter of Fundamental Rights correspond to those guaranteed by the ECHR, the power granted to Member States by the ECHR must be limited to that which is necessary to ensure that the level of protection provided for by the Charter and the primacy, unity and effectiveness of EU law are not compromised. There is, however, no provision in the draft agreement to ensure such coordination.
The Court considers that the draft agreement treats the EU as a State and gives it a role identical in every respect to that of any other Contracting Party. Consequently, it disregards the intrinsic nature of the EU. It fails to take account of the fact that the Member States have accepted that their relations are governed by EU law to the exclusion of any other law. In requiring the EU and the Member States to be considered Contracting Parties not only in their relations with Parties which are not members of the EU but also in their relations with each other, the ECHR would require each Member State to check that the other Member States had observed fundamental rights, even though EU law imposes an obligation of mutual trust between those Member States. Thus accession is liable to upset the underlying balance of the EU and undermine the autonomy of EU law and the agreement envisaged contains no provision to prevent such a development.
The Court notes that Protocol No 16 to the ECHR, signed on 2 October 2013, permits the highest courts and tribunals of the Member States to request the ECtHR to give advisory opinions on questions of principle relating to the interpretation or application of the rights and freedoms guaranteed by the ECHR or its protocols. Given that, in the event of accession, the ECHR would form an integral part of EU law, the mechanism established by that protocol could affect the autonomy and effectiveness of the preliminary ruling procedure provided for by the FEU Treaty, notably where rights guaranteed by the Charter correspond to rights secured by the ECHR. There is a risk that the preliminary ruling procedure might be circumvented. The Court considers that the draft agreement fails to make any provision in respect of the relationship between those two mechanisms.
Breach of Article 344 TFEU
Article 344 TFEU provides that Member States undertake not to submit a dispute concerning the interpretation or application of the Treaties to any method of settlement other than those provided for by the Treaties.
The draft agreement allows for the possibility that the EU or Member States might submit an application to the ECtHR concerning an alleged violation of the ECHR by a Member State or the EU in relation to EU law. The very existence of such a possibility undermines the requirements of the TFEU.
Division of powers between the EU and its Member States
The draft agreement provides that a Contracting Party is to become a co-respondent in proceedings before the ECtHR either by accepting an invitation from the ECtHR or by decision of the ECtHR upon the request of that Contracting Party. If the EU or Member States request leave to intervene as co-respondents in a case before the ECtHR, they must prove that the conditions for their participation in the procedure are met. In carrying out a review of whether those conditions are met, the ECtHR would be required to assess the rules of EU law governing the division of powers between the EU and its Member States as well as the criteria for the attribution of their acts or omissions. The ECtHR could adopt a final decision in that respect which would be binding both on the Member States and on the EU. To permit the ECtHR to adopt such a decision would risk adversely affecting the division of powers between the EU and its Member States.
The procedure for the prior involvement of the Court of Justice
The draft agreement includes a procedure to enable the Court of Justice to be involved in cases brought before the ECtHR in which EU law is at issue but has not yet been decided upon by the Court.
The Court finds that that procedure is defective in two respects.
- First, the question whether the Court of Justice has already given a ruling on the same question of law as that at issue in the proceedings before the ECtHR can be resolved only by the Court of Justice itself. To permit the ECtHR to rule on such a question would be tantamount to conferring on it jurisdiction to interpret the case-law of the Court. Consequently, that procedure should be set up in such a way as to ensure that, in any case pending before the ECtHR, the EU is fully and systematically informed, so that the competent institution is able to assess whether the Court has already given a ruling on the question at issue and, if not, to arrange for the prior involvement procedure to be initiated.
- Second, the draft agreement excludes the possibility of bringing a matter before the Court in order for it to rule on a question of interpretation of secondary law by means of that procedure. Limiting the scope of that procedure solely to questions of validity adversely affects the competences of the EU and the powers of the Court.
Judicial review in matters of common foreign and security policy (CFSP)
The Court finds, as EU law now stands, certain acts adopted in the context of the CFSP fall outside the ambit of judicial review by the Court. Nevertheless, on the basis of accession as provided for by the draft agreement, the ECtHR would be empowered to rule on the compatibility with the ECHR of certain acts, actions or omissions performed in the context of the CFSP, notably those whose legality the Court cannot, for want of jurisdiction, review in the light of fundamental rights. Such a situation would effectively entrust, as regards compliance with the rights guaranteed by the ECHR, the exclusive judicial review of those acts, actions or omissions on the part of the EU to a non-EU body. Therefore, the draft agreement fails to have regard to the specific characteristics of EU law with regard to the judicial review of acts, actions or omissions on the part of the EU in the area of the CFSP.
Now then, can anyone explain why this important opinion does not show up in Eur-Lex ? Seriously ! How dreadful can Eur-Lex get ?
If you want to read a interesting and critical assessment of this opinion, look at Steve Peer’s commentary.