At long last, the CJEU has today delivered its ruling regarding the EU’s accession to the European Convention on Human Rights (ECHR). It’s a complex judgment that raises many legal questions. For now, this post seeks to provide: a summary of the ruling; an assessment of the consequences of the ruling; and an initial critique of the Court’s reasoning. On the latter point, the Court’s ruling is fundamentally flawed. In short, the Court is seeking to protect the basic elements of EU law by disregarding the fundamental values upon which the Union was founded.
Back in 1996, in Opinion 2/94, the CJEU ruled that as European Community law (as it then was) stood at that time, the EC could not accede to the ECHR. Only a Treaty amendment could overturn this judgment, and in 2009, the Treaty of Lisbon did just that, inserting a new provision in the Treaties that required the EU to accede to the ECHR (Article 6(2) TEU). That treaty also added a Protocol 8 to the Treaties, regulating aspects of the accession, as well as a Declaration requiring that accession to the ECHR must comply with the ‘specific characteristics’ of EU law.
However, these new Treaty provisions could not by themselves make the EU a contracting party to the ECHR. To obtain that outcome, it was necessary for the EU to negotiate a specific accession treaty with the Council of Europe. After a long negotiation process, this accession treaty was agreed in principle in 2013. Today’s ruling by the CJEU concerns the compatibility of that treaty with EU law.
At the outset, the CJEU ruled that the case was admissible (paras 144-52), even though the internal rules which will regulate the EU’s involvement in the ECHR have not yet been drafted. In fact, the CJEU said that these internal rules couldn’t be the subject-matter of the opinion, even if they had been drafted. The UK government had reportedly been very angry about the prospect of the CJEU considering these internal rules, so it should be satisfied on this issue.
Next, the Court made some preliminary points (paras 153-77), asserting for the first time expressly that the EU is not a state (para 156); and (in effect) that the EU system is sui generis (para 158), ie in a class by itself, without using that exact Latin phrase. Those critics of the EU who consider it to be a State, and those academics who dislike the sui generis concept, now have some words to eat. The Court also asserted that it was important to ensure the primacy and direct effect of EU law, referring also to the EU’s goals of ‘ever closer union’.
The Court then ruled that the draft agreement was incompatible with EU law, for five main reasons. Firstly, it did not take account of the specific characteristics of EU law (paras 179-200), in three respects. It did not curtail the possibility of Member States having higher human rights standards than EU law, even though the CJEU had ruled (in the Melloni judgment of 2013) that Member States could not have higher standards than the EU Charter of Rights, where the EU has fully harmonised the law. The same rule applies to the ECHR, in the Court’s view, and the draft agreement did not take account of this. Similarly, the draft agreement did not provide for the application of the rule of ‘mutual trust’ in Justice and Home Affairs (JHA) matters, which means that Member States must presume that all other Member States are ‘complying with EU law and particularly with the fundamental rights recognised by EU law’, other than in ‘exceptional circumstances’. Also, the agreement failed to rule out the possibility that when applying Protocol 16 to the Convention, which provides for national courts to send questions to the European Court of Human Rights (ECtHR) on the interpretation of the ECHR, those national courts would ask the ECtHR to rule on EU law issues, before they asked the CJEU. This would circumvent the EU’s preliminary ruling procedure.
Secondly, the draft accession agreement violated Article 344 TFEU, which gives the CJEU monopoly on inter-state dispute settlement regarding EU law between Member States (paras 201-14), since it failed to rule out the possible use of the ECtHR to settle such disputes instead.
Thirdly, the co-respondent system set up in the draft agreement, which creates a new type of procedure where both the EU and a Member State could be parties to an ECtHR case, was incompatible with EU law for three reasons (paras 215-35). The problem with this process was that: it would give the ECtHR the power to interpret EU law when assessing the admissibility of requests to apply this process; a ruling by the ECtHR on the joint responsibility of the EU and its Member States could impinge on Member State reservations to the Convention; and the ECtHR should not have the power to allocate responsibility for breach of the ECHR between the EU and Member States, since only the CJEU can rule on EU law.
Fourth, the rules in the draft treaty on the prior involvement of CJEU before the ECtHR ruled on EU law issues were also incompatible with EU law, for two reasons (paras 236-48). They did not reserve to the EU the power to rule on whether the CJEU has already dealt with an issue, and they did not permit the CJEU to rule on the interpretation, not just the validity, of EU law.
Finally, the rules on the Common Foreign and Security Policy (CFSP) were incompatible with EU law (paras 249-57), because a non-EU court cannot be given the power of judicial review over EU acts, even though the CJEU has no such jurisdiction itself as regards most CFSP issues.
First and foremost, EU accession to the ECHR obviously cannot go ahead on the basis of the current draft agreement. The Court has in effect provided a checklist of amendments to the accession agreement that would have to be made to ensure that accession is compatible with EU law. The amendments would have to deal with the following ten issues: (a) ensuring Article 53 ECHR does not give authorisation for Member States to have higher human rights standards than the EU Charter, where the EU has fully harmonised the law; (b) specifying that accession cannot impact upon the rule of mutual trust in JHA matters; (c) ensuring that any use of Protocol 16 ECHR by national courts cannot undermine the EU preliminary ruling system, presumably by ruling out the use of Protocol 16 where EU law issues are involved; (d) specifying expressly that Member States cannot bring disputes connected with EU law before the ECtHR; (e) ensuring that in the co-respondent system, the ECtHR’s assessment of admissibility does not extend to the power to interpret EU law; (f) guaranteeing that the joint responsibility of the EU and its Member States for ECHR breaches cannot impinge upon Member State reservations to the Convention; (g) preventing the ECtHR from allocating responsibility for ECHR breaches as between the EU and its Member States; (h) ensuring that only the EU institutions can rule on whether the CJEU has already dealt with an issue; (i) providing that the CJEU should be allowed to rule on the interpretation, not just the validity, of EU law, during the ‘prior involvement’ procedure; and (j) curtailing the role of the ECtHR to rule on EU foreign policy matters.
Any such changes to the accession agreement will have to be negotiated by all 47 of the signatories to the ECHR. The accession agreement would, if agreed, then have to be ratified by all of these States to come into force. It would also have to be agreed unanimously by the EU Council, and ratified by the European Parliament.
It’s hard to say in the abstract how difficult such a renegotiation will be. Suffice it to say that the compromise found in the current accession treaty was very difficult to reach, and it’s hard to imagine that the EU’s demand for a ten further amendments to that text – which would necessarily be non-negotiable – would be received happily.
Some of the Court’s objections probably correspond with the intentions of the parties to the accession agreement, and it should be easy to accept amendments reflecting that. However, some of them insist on either the primacy of the EU Courts over the ECtHR, or would give priority to EU law over the substance of the rights protected by the Convention. Those amendments would be difficult to agree in principle, and it might even be doubted whether they would be compatible with the intrinsic nature of the ECHR.
If those amendments were indeed be incompatible with the ECHR, there would be no point wasting further time and effort on negotiating them. So it would be best for the Committee of Ministers to invoke Article 47 ECHR, which allows it to ask the ECtHR to give an advisory opinion on the interpretation of the Convention or its protocols. Arguably, this doesn’t extend to the draft accession agreement, but then that agreement in its current form would amend the ECHR; any revised agreement would likely amend the ECHR even more. The ECtHR ought to have a chance to rule on whether the CJEU’s preferred amendments to the ECHR violate the fundamentals of the Convention system.
Could the Court’s objections (or some of them) be met by the EU making reservations to the ECHR? According to Article 57 ECHR, reservations to the Convention are permitted, provided that they are not of a ‘general character’. The ECtHR has ruled in the past that some reservations were invalid for breaching that rule. Much legal pain would be avoided if the ECtHR ruled in advance (using the advisory procedure) on whether possible reservations by the EU would be valid. Arguably reservations relating to CFSP or JHA matters would indeed be invalid, due to their ‘general character’.
What if the process of EU accession stalls as a result of this judgment? It’s hardly an unlikely scenario. As a matter of EU law, accession of the EU to the ECHR is an obligation: the EU ‘shall accede’ to the Convention. The EU institutions can be sued for any ‘failure to act’ to comply with their legal obligations. So arguably the Commission is under an obligation to request an amendment to its negotiation mandate, the Council is under an obligation to grant it, and the Member States are obliged to support the EU position (a breach of the latter obligation could be punished by means of infringement proceedings).
But a legal obligation deriving from the EU Treaties cannot bind third parties. If the ECtHR, or one or more non-EU Member States, refuse to continue with negotiations for accession on the basis of the CJEU’s demands, the EU institutions and the Member States could not be held liable for that.
The legal obligation to continue the accession process is, of course, distinct from the question of principle here: whether the accession process ought to continue on the basis of the CJEU opinion. I now turn to that question, as part of my assessment of the Court’s reasoning.
There are two categories of objections to the ECHR accession in the Court’s judgment: procedural and substantive. The former are, for the most part, much less problematic than the latter. Let’s consider them in turn.
The procedural objections are essentially those in points (c) to (i) in the list above, concerning: Protocol 16 ECHR and the preliminary ruling process; inter-state dispute settlement; the co-respondent procedure; the prior involvement procedure; and CFSP matters. Seven of these eight points have one thing in common: preserving the CJEU’s power to rule on EU law. The exception is point (i), because to a large extent, the CJEU has no power to rule on CFSP matters.
From the point of view of substantive human rights protection, that first group of seven objections is not problematic in principle. It is reasonable for the CJEU to ensure that issues relating to EU law remain within its jurisdiction (where that jurisdiction currently exists), leaving the ECtHR jurisdiction to rule on the interpretation of the ECHR. Of course, it will be hard, if not impossible, in practice, to separate the two issues, particularly when it comes to ruling on the liability for breach of the Convention and the admissibility of the special procedures set up by the draft agreement.
But that is a minor problem compared to the Court’s objections relating to CFSP, and to the substance of the ECHR. On the CFSP point, the Court’s objection is quite simply mind-boggling. Human rights breaches unfortunately occur in foreign policy operations, ranging from violations of the right to life, to arbitrary detention to human trafficking by foreign forces. The CJEU has no jurisdiction to protect, as regards most CFSP matters; but it rules that the ECtHR cannot have judicial review powers either. (Note to public international lawyers: this must mean that it would also breach EU law for Member States to bring a CFSP dispute to the ICJ).
This goes beyond setting a dividing line over which Court has jurisdiction to interpret EU law: to repeat, the CJEU’s position is that if it can’t have jurisdiction over CFSP, then no other international court can either. In short. since it isn’t allowed to play, it’s taking the football away from everyone else. It’s the judicial politics of the playground. But it could have serious consequences, leaving the victims of serious human rights violations without an effective remedy at international level. Or is the entire world meant to trust that the military forces from the continent that brought us the Holocaust and two World Wars would never, when acting under the EU’s aegis, commit human rights offences?
This brings us to the two substantive points: the need to ensure that Member States do not set higher standards within the field of EU law, and the need to protect the principle of mutual trust in JHA matters. On the first point, the Court is today extending to the ECHR its long-standing principle that the primacy of EU law prevents Member States having higher human rights standards, where EU law has fully harmonised the matters concerned. From an EU law perspective, it’s perhaps not surprising that this rule – which the Court had previously applied to the general principles of EU law (the main previous method of protecting human rights in the EU legal system) and the Charter – also applies to the ECHR. But from the perspective of international human rights law, it’s shocking: it cuts into a central principle found in all human rights treaties.
The Court’s ruling on this point would be less problematic if it were not for its ruling on mutual trust in JHA matters. After all, if it were possible to resist removal to another Member State on human rights grounds despite the Dublin rules on asylum responsibility, or to resist the execution of a European Arrest Warrant on such grounds, then many violations of human rights in individual cases would be avoided. But the Court reiterates, in very strong terms, its established presumption that the EU is built on the principle of mutual trust in this area, which can only exceptionally be set aside. One can infer that the CJEU is seething about the ECtHR’s recent judgment in Tarakhel, which conspicuously failed to defer to the ECJEU’s poorly reasoned defence of the Dublin system in last year’s Abdullahi judgment (see discussion here).
On the JHA point, the Court is insisting that its own conception of the EU JHA system must prevail over human rights protection as defined by the ECtHR. The underlying theme of both of these substantive points is that the ECHR should adapt to EU law as defined by the CJEU, not the other way around.
Is that fundamentally justifiable? It’s striking that the ‘values’ of the EU – which are a condition for EU membership, and which could lead to suspension of a Member State in serious cases – include human rights and related principles. There’s no mention of the primacy of EU law, of mutual trust in JHA matters, or of divesting any international court from having jurisdiction over CFSP matters. Indeed, on the latter point, today’s judgment clearly shows contempt for the ‘rule of law’, another founding value mentioned in Article 2 TEU. And for JHA in particular, the Treaty drafters provided in Article 67(1) TFEU that the EU must ‘constitute an area of freedom, security and justice with respect for fundamental rights’. The Treaty doesn’t give priority to mutual trust over human rights – quite the opposite.
This leads me to a final point. As noted above, the EU retains a legal obligation to accede to the ECHR, and must therefore take some steps to that end. But, as a matter of principle, is it still worth advocating EU accession to the Convention?
Quite frankly, EU accession to the Convention, in the terms defined today by the CJEU, could only appeal to those who don’t like human rights very much. In fact, in many respects the Court’s judgment is essentially a more articulate and EU-specific version of the document recently produced by the UK’s Justice Minister, which sought changes to the law to ensure that the UK would be free to do as it wished as regards human rights issues, while (possibly) nominally remaining a signatory of the ECHR. Of course, those who dislike the ECHR tend to dislike the EU as well, so this is a narrow basis politically to go forward. In particular, those who would like to scrap the European Arrest Warrant (EAW) because of the miscarriages of justice which it sometimes produces (rather than try and prevent those miscarriages) are hardly likely to favour a process which would be specifically aimed to entrench those failings.
As for those of us who support human rights protection, today’s judgment is an unmitigated disaster. For the most part, human rights advocates have supported EU accession to the ECHR for many years, in order to ensure effective external control of the failings of the EU and (within the scope of EU law) its Member States as regards human rights. But today’s CJEU judgment has surgically removed that key reason for supporting accession.
Far from enhancing the protection of human rights within the EU legal order, the EU’s accession to the ECHR, on the terms which the CJEU insists upon, would significantly diminish it, for the EU would be compelled to ensure that it insulates itself against many human rights claims that might be brought against it.
So for the sake of those who are trafficked by EU-coordinated troops, who are suffering miscarriages of justice in EAW proceedings, who are being pushed back from the EU’s shores, drinking from toilets in immigration prisons, starving on the streets because Member States won’t or can’t give them housing or benefits, or drowning in a desperate attempt to reach European refuge, we now have a moral duty to reject the EU’s accession to the ECHR.
Barnard & Peers: chapter 9