The Court of Justice of the European Union (CJEU) ruled on December 18th that a draft agreement for the accession of the European Union (EU) to the European Convention on Human Rights (ECHR) is incompatible with EU law. [CJEU Press Release] The decision halts, at least temporarily, progress in efforts to see the EU become a party to the ECHR and, therefore, subject to jurisdiction of the European Court of Human Rights. According to several human rights groups, including the International Commission of Jurists (ICJ), Amnesty International (AI), and the AIRE Centre, the opinion creates a serious setback for human rights in Europe. [ICJ]
Background to the Opinion
Currently, the European Court of Human Rights (ECtHR) receives applications from individuals and States alleging violations of the ECHR. The ECtHR itself was created under the aegis of the Council of Europe—an intergovernmental organization comprised of 47 Member States. The only connection between the Council of Europe and the EU is that the EU, its 28 Member States and candidates for membership must ratify the ECHR. See IJRC, European Human Rights Bodies.
The EU has worked for decades to accede to the ECHR in order to ensure more effective and homogenous observance of fundamental rights and freedoms in the region, and to provide an external mechanism to enforce compliance with these rights. In effect, by acceding to the ECHR, the EU will itself be bound by the same rules that apply to its Member States individually. See View of Advocate General Kokott, Opinion procedure 2/13 (initiated following a request made by the European Commission), 13 June 2014, paras. 1, 2. Such uniformity is important because currently individual States may be held accountable before the ECtHR for implementing EU rules that run afoul of the ECHR, and because the CJEU has been independently adjudicating human rights issues in Europe under the EU’s Charter of Fundamental Rights. By acceding to the ECHR, the EU would create a “single, comprehensive and coherent” human rights regime in Europe. [EurActiv]
In 1996, the CJEU determined in Opinion 2/94 that under European Community (EC) law as it then stood, the EC had no power to accede to the ECHR. [CJEU Press Release] In 2009, the EU overturned the CJEU decision by entering into the Treaty of Lisbon, which provides in Article 6 that the EU “shall accede to the [ECHR]” and that the fundamental rights guaranteed by the ECHR “shall constitute general principles of the Union’s law.”
On June 4, 2010, the Council of the European Union—which adopts laws and coordinates policies for the EU—opened negotiations for the EU’s accession to the ECHR. A revised draft of the accession agreement was presented to the Council of Europe in June 2013. See View of Advocate General Kokott, Opinion procedure 2/13 (initiated following a request made by the European Commission), 13 June 2014, paras. 5-7. The proposed agreement was then sent to the CJEU to determine its compatibility with EU law. Id. at para. 8
Summary of the Opinion
As an initial matter, the CJEU noted that with the entry into force of the Treaty of Lisbon, there now exists “a specific legal basis” for the accession of the EU to the ECHR. CJEU, Opinion 2/13 of the Court (Full Court), 18 December 2014, para. 153. Nevertheless, the CJEU pointed out several “significant distinctive features” of the EU’s accession. In this regard, the Court noted first that unlike the other Parties to the ECHR, the EU is not a State. Id. at paras. 154-56. Furthermore, the Court determined that the EU represents “a new kind of legal order . . . which is peculiar to the EU,” effectively establishing that the EU is in a legal class by itself. Id. at paras. 157-58. As a result of the EU’s special character, the EU’s accession to the ECHR must meet “various conditions.” Id. at para. 159. In particular, the Court emphasized that the accession must not interfere with “the specific characteristics of the EU and EU law.” Id. at para. 164.
These “specific characteristics” include EU law’s “primacy over the laws of the Member States,” the “network of principles, rules and mutually interdependent legal relations” between the EU and its Member States designed to create “an ever closer union among the peoples of Europe,” and the “fundamental premiss” that Member States share a common set of values leading to “mutual trust between the Member States” that those values will be recognized and respected. Id. at paras. 166-68. To safeguard the special character and autonomy of the EU’s legal order, the EU created a judicial system designed to “ensure consistency and uniformity in the interpretation of EU law.” Id. at para. 174. In particular, the CJEU is tasked with ensuring the application of EU law, and with protecting individual rights under that body of law. The CJEU’s role in this regard is to ensure the “consistency . . . full effect and . . . autonomy” of EU law. Id. at paras. 175-76.
The Court went on to hold that the draft accession agreement disregarded the distinctive features and special role of the EU and EU law in 10 ways:
1. The agreement provides no mechanism for coordinating between the rights regime established by the ECHR as interpreted by the ECtHR, and the rights regime established by the Charter of Fundamental Rights as interpreted by the CJEU. The ECHR reserves to States Parties the power to establish stronger human rights protections than those laid out in the ECHR itself. In contrast, the CJEU has determined that States may not exceed the level of protections established in the EU Charter of Fundamental Freedoms in order to ensure the “primacy, unity and effectiveness of EU law.” In the CJEU’s view, any accession agreement must ensure that Member States do not exceed the human rights standards embodied in the Charter in order to preserve the primacy and harmony of EU law. Id. at paras. 187-90.
2. The agreement does not provide any mechanism to prevent Member States from checking whether other Member States are fulfilling their obligation to safeguard fundamental rights. However, under EU law, the fundamental principle of mutual trust between Member States requires that, except in exceptional circumstances, all States must presume that other Member States are in compliance with their obligations concerning fundamental rights, and may not in any specific case check whether a Member State actually has “observed the fundamental rights guaranteed by the EU.” Id. at paras. 191-95.
3. The ECHR allows States Parties to seek advisory opinions from the ECtHR on the interpretation or application of the rights and freedoms enshrined in the ECHR. This could conflict with EU law, which requires EU Member States to submit any such questions to the CJEU for a preliminary ruling. As a result, the agreement may “adversely . . . affect the autonomy and effectiveness of the [preliminary ruling] procedure.” Id. at paras. 196-99.
4. The agreement fails to adequately preserve the exclusive jurisdiction of the CJEU over inter-State disputes, because either the EU or a Member State could submit an application alleging a violation of the ECHR to the ECtHR. This is problematic because, pursuant to the Treaty on the Functioning of the European Union (TFEU), Member States must submit disputes concerning EU law to the CJEU. Once the EU accedes to the ECHR, the ECHR will become part of EU law – and thus any disputes between Member States or the EU and any member State regarding compliance with the ECHR would be subject to the exclusive jurisdiction of the CJEU. Id. at paras. 201-08.
5. The co-respondent system created by the draft agreement, which establishes a novel procedure through which both the EU and a Member State could be parties to a case before the ECtHR, violates EU law because, in determining whether the EU or a State could become a party to a case as a co-respondent, the ECtHR would have to assess EU law. Specifically, the ECtHR would have to consider the EU laws governing the distribution of power between the EU and its Member States, and the criteria for attributing the acts or omissions to either the EU or a Member State. The ECtHR’s decision on these issues would be binding on the Member State and on the EU itself. This could impermissibly interfere with the division of powers between the EU and Member States. Id. at para. 221-25.
6. The co-respondent system is also problematic, because it does not explicitly respect reservations made by Member States to the ECHR. If the ECtHR were to find a violation, both the respondent and co-respondent would be jointly liable, even if the co-respondent had made a relevant reservation to the ECHR. This would fly in the face of EU law, which requires that nothing in the accession agreement may affect the status of Member States’ reservations to the ECHR. Id. at paras. 226-28.
7. The co-respondent system may also impermissibly affect the distribution of powers between the EU and its Member States. Per the draft agreement, the ECtHR may – on an exceptional basis – determine that only the co-respondent or respondent is to be held responsible for a given violation. In allocating responsibility in this way, the ECtHR would necessarily have to assess EU rules concerning the distribution of power between the EU and its Member States, and how to attribute responsibility for acts and omissions between the EU and its Member States. This could allow the ECtHR to interfere with the allocation of power between the EU and Member States. Id. at paras. 229-31.
8. The draft agreement does not exclude the possibility that the ECtHR could, as an initial matter, determine whether the CJEU has already ruled on a question of law or fact in proceedings before the ECtHR. This would impermissibly confer on the ECtHR jurisdiction to interpret CJEU jurisprudence; this role should be performed only by the relevant EU institutions. Id. at paras. 236-41.
9. The rules governing the prior involvement of the CJEU in a particular matter limit the CJEU’s involvement to a determination of the validity of EU law. As a result of this restriction, the ECtHR may nonetheless determine questions of interpretation of EU law – despite the CJEU’s “exclusive jurisdiction over the definitive interpretation of EU law.” Id. at paras. 244-47.
10. The rules on Common Foreign and Security Policy in the draft agreement violate EU Law, because they give a non-EU court—the ECtHR—the power to review EU acts, even though the CJEU does not have the authority to review such acts, and even though ECtHR review would be restricted to determining compliance with the rights enshrined in the ECHR. Id. at paras. 250-57.
Implications of the Court’s Opinion
The CJEU’s opinion means that the EU cannot accede to the ECHR on the basis of the current accession agreement. The agreement must effectively be amended to address the ten problems identified by the CJEU and outlined above. Such amendment may, however, be difficult if not impossible to realize. In particular, amendments designed to prioritize EU law over the ECHR or to ensure the primacy of the CJEU over the ECtHR might be incompatible with the nature of the ECHR itself. [EU Law Analysis]
In responding to the CJEU’s opinion, Amnesty International, the AIRE Center, and the ICJ emphasized that any new accession negotiations must prioritize the right of individual access to “proper protection of their human rights in relation to the acts and omissions of the EU,” as well as to effective remedies for violations. [Amnesty International Public Statement] Additionally, it must fall to the ECtHR to ensure that the EU complies with its human rights obligations once it accedes to the ECHR. [Amnesty International Public Statement]