Andrew Duff -  On Governing Europe

Something rather shocking has happened. The European Court of Justice (ECJ) has just confounded its friends as well as its foes by blocking the EU’s efforts to sign up to the European Convention on Human Rights (ECHR). In Opinion 2/13 delivered on 18 December, the Court ruled that the draft accession agreement between the European Union and the Council of Europe breaches EU law. In so doing, the judges defied the combined will of the European Commission and the European Parliament. They also demurred from the advice of their Advocate General Kokott who had recommended, with qualification, that the deal be accepted.

Although we may assume that several EU member states were and still are ambivalent about the project, the European Council (24 of whose member states intervened separately in the case) was bound to follow the treaty which says that the Union ‘shall’ accede to the ECHR. Difficult negotiations on the draft agreement were concluded between the EU and the Council of Europe’s 20 non-EU signatories in April 2013, and the Commission then asked the ECJ for its advice on the compatibility of the agreement with the EU treaties (under Article 218(11) TFEU).

The Opinion is long and complicated, as it might well be considering the long history and high political importance attached to the matter in hand. It is worth recalling – especially because the Opinion does not do so – that the goal of EU accession to the ECHR is to strengthen human rights protection in Europe. That the EU requires the adherence of all its member states to a Convention to which itself is not a party is an anomaly. It has been argued for decades that the EU needs to conform explicitly to the original human rights document of post-War Europe in the interests of legal certainty, uniformity and effectiveness. The EU borrowed and copied the ECHR when it drafted the Charter of Fundamental Rights in 1999-2000, and signing up to the ECHR was made a quid pro quo (not least at the insistence of the prickly British) for allowing the Charter to be made binding in the Treaty of Lisbon. Indeed, the ECJ demanded a change to the treaty in a 1996 Opinion precisely in order to make accession compatible with EU law. This was achieved at Lisbon (Article 6 TEU & Protocol No 8).

Does it matter?

The effect of the EU’s adhesion would be to accept the European Court of Human Rights (ECtHR) as the external supervisor of the ECJ in the matter of fundamental rights when and in so far as the exercise of EU competences were concerned. The EU’s own mandatory Charter is already cited in much ECJ litigation, and although the EU is expressly permitted in interpreting the Charter to go further in more extensive rights protection, the jurisprudence of the ECJ and the political and legislative actions of the EU institutions must not contradict the earlier Convention. It is also presumed that after accession the right of redress for a breach of rights will be quicker and cheaper at the ECJ in Luxembourg than at the ECtHR in Strasbourg. Optimistically, one could foresee ECJ jurisprudence establishing the best rights regime in the world.

The accession process was always going to be fairly complex. The EU, needless to say, is not a state: but its status in international law, the fact that its own supranational law has primacy and direct effect, the given nature of EU citizenship and its institutional arrangements (not to mention a single currency), give the EU a perfectly adequate standing to become a party to the Strasbourg Convention. If not a state, the Union is certainly, and increasingly, state-like. While the EU will not join the Council of Europe, the Commission will sit in the Committee of Ministers, which is the control body of the Convention system, an EU judge will join the Strasbourg Court, and MEPs will join the Parliamentary Assembly (PACE) for the election of judges.

So what’s the problem?

The Court of Justice, which in any case tends to exaggerate the uniqueness of the EU’s constitutional order (as if no other federal system has ever existed), takes a lofty view of its own importance. According to the Opinion, the draft accession agreement fails to preserve the specific characteristics of EU law; it does not adequately ensure that accession to the ECHR will not affect the share-out of competences between the member states and the EU or the powers of the EU institutions. The ECJ fears that the ECtHR could interlope into domestic EU matters. In particular, the Court’s powers to give preliminary rulings on the application of EU law (Article 267 TFEU), and the obligation for states to deal with their disputes exclusively at the ECJ (Article 344 TFEU) are deemed to be jeopardized by the draft agreement.

The Opinion complains that the mechanisms to ensure proper coordination between the Luxembourg and Strasbourg courts are not spelled out, at least where the ECJ would be asked by the ECtHR for its prior involvement in a case to assess its substantive and procedural relevance to either the primary or secondary law of the EU. The ECJ dislikes the freedom given in the draft agreement to the ECtHR to examine the plausibility of an EU state’s eligibility to become a co-respondent to a case, believing that both the EU and an EU state should have an automatic right to intervene in relevant Strasbourg litigation. And the Court of Justice worries that the habitual and mutual presumption that each EU member state respects fundamental rights to the letter, especially in the field of justice and home affairs, will be undermined by the arrival on the scene of a bossy external supervisor.

Lastly, there is the thorny issue of the common foreign and security policy (CFSP) where the ECJ’s own powers of judicial review are greatly restricted under the terms of the EU treaty (Articles 24(1) TEU & 275 TFEU). After accession to the ECHR, the Strasbourg court would have much more power than its counterpart in Luxembourg to interpose on (the fairly numerous) breaches of human rights in the area of CFSP. The Opinion finds this state of affairs distasteful.

What’s to be done?

The practical effect of the shock judgment of the Court is to kill off the draft agreement and to postpone indefinitely the EU’s accession to the ECHR. The Commission would be wise, however, not to let the matter drop. Improvements and clarifications to the issue of coordination between the two courts can be made to the draft agreement if the other members of the Council of Europe agree. They should be attempted. Despite the bad state of diplomatic relations between Russia, Turkey and the EU, the accession agreement would give those states the right to intervene at the ECJ; and their voting rights are to be well protected.

Furthermore, the EU must now complete the negotiation of its own internal rules that will govern how the institutions deal with ECHR affairs in the future. These rules, which will have to be agreed with the European Parliament, ought to satisfy the sceptical lawyers that the due process of legitimate governance under the treaties will be respected. The rules of procedure of the Council and Parliament will need to be modified, as will the Statute of the Court.

And, lastly, the EU treaties should be changed. Adjustments to Protocol No 8 aside, two other amendments would immediately help the installation of a decent fundamental rights regime at the EU level. First, the woeful restrictions on the jurisdiction of the Court of Justice in the field of CFSP should be lifted. Second, we need a new clause to oblige the member states to respect the constitutional identity of the European Union, not least in terms of its values and principles. Let us call this the Viktor Orban clause. That would certainly make our Union more state-like.

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Andrew Duff took part in the drafting of the Charter of Fundamental Rights and the Treaty of Lisbon. Pandora, Penelope, Polity: How to Change the European Union is published on 19 January.

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