While the Union is still facing the political consequences of the financial crisis, there is another important challenge for the European integration that has attracted the attention of some commentators over the last months.
It is not only a legal issue, it is much more, a fundamental step in the progressive democratization of the EU, understood as a community based on the respect of fundamental rights and rule of law.
I am referring to the accession of the EU to the ECHR, at least for those who still believe in the it after Opinion 2/13 CJEU¹ a very problematic decision which concluded that the accession agreement was not compatible with the EU Treaties. This does not exclude the future accession (commanded by Art. 6 TEU) but of course it creates new (unexpected) obstacles in the path towards that result. The accession to the ECHR can be considered as the outcome of a process of gradual emergence of the issue of fundamental rights in EC/EU law; as written it is a step in the journey towards a more comprehensive system of protection of fundamental rights. It will also be a test for the EU institutions that will not only be controlled “internally” (by the domestic actors operating at the national level), but also “externally”, according to a mechanism that will enable the European Court of Human Rights (ECtHR) to abandon the indirect control which, since the Cantoni² judgment, has always carried de facto, even on the “fundamental rights performance” of the EU.

With particular reference to the Court of Justice, the accession to the Convention may also mean the beginning of a period of downsizing and this could have consequences on the same doctrine of the autonomy of Union law. Relationships that are now managed through comity (see doctrine Bosphorus³) could be subject to a rigorous discipline, with obvious limitations of the scope of autonomy of the actors involved (more certainty, one might say, but also less flexibility).Traditionally, as the Mox Plant⁴ case demonstrates, the CJEU has always jealously guarded its monopoly of interpretation; how will it react to this new situation? This is not merely a hypothetical question, as Arts. 1 and 3 of the Protocol concerning EU accession to the ECHR to the Treaty of Lisbon confirm⁵.According to this Protocol, nothing in the agreement relating to the accession of the EU to the European Convention on the Protection of Human Rights and Fundamental Freedoms provided for in Article 6(2) of the Treaty on European Union shall affect Article 344 of the TFEU (former Art. 292 ECT). Article 344 of the TFUE concerns the interpretive monopoly of the CJEU on EU law (and, as is well known, the agreements concluded by the European Union are considered as part of EU law due to the automatic treaty incorporation doctrine⁶).

Indeed the attention paid by the CJEU in Opinion 2/13 has confirmed the importance of Art. 344 TFEU. Why was such an article recalled in the Protocol on the accession to the ECHR? Looking at some documents published on the CJEU’s website⁷, one can see how the Luxembourg Court seems to be worried about the need to preserve its interpretive autonomy (another pillar of its reasoning in Opinion 2/13) and this might induce the CJEU to present some thorny interpretive issues involving both the ECHR and the European Charter of Fundamental Rights (CFREU) as questions concerning only the second document in order to preserve its interpretive autonomy. This is just a hypothesis and the future will tell us more about that (again, imagining that Opinion 2/13 will just delay and not preclude the accession). What is interesting here is to demonstrate how the results of the accession cannot be easily forecast, at least at this stage, without having a clear picture of the contents of the agreement evoked by Protocol No. 8.

This discussion confirms the interpretative competition between the European Courts and the risk of conflicts even after accession. The draft of the agreement on the accession (DAA)⁸ of the EU to the ECHR was made public and, from its wording (at least looking at its first version), according to some authors, it seemed to interpret the relation between the ECtHR and the CJEU as a hierarchical one⁹.What should we do now after Opinion 2/13? In a provoking post, Besselink argued that a new Protocol should be introduced whose wording would be as follows:

“The Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms, notwithstanding Article 6(2) Treaty on European Union, Protocol (No 8) relating to Article 6(2) of the Treaty on European Union and Opinion 2/13 of the Court of Justice of 18 December 2014” (Besselink 2014).

This would be a sort of “Notwithstanding Protocol” (Besselink 2014) introduced with the specific purpose of circumventing the Opinion of the CJEU. Perhaps there will be room for changes and adjustments, and the possibility has also been suggested of a mechanism similar to the preliminary ruling procedure that allows the European Courts (CJEU and ECtHR) to “converse” using a preferred mechanism for judicial cooperation10. However, even in the case of confirmation of the “hierarchical” reconstruction of the relationship, the autonomy of interpretation of the CJEU would not suddenly disappear. Much will depend, for example, on how the CJEU would treat cases of potential “interest” to the Strasbourg Court. In the event that the CJEU considers that the interpretation to be given to the provisions of the Charter of Fundamental Rights is not perfectly coincident with that of a similar provision contained in the ECHR (which is not improbable, even in light of the explanations of the Charter drafted by the Praesidium), for example, the Luxembourg court could “carve out” an area of non-interference, even in this area, from the control exercised by Strasbourg.

In any case, whereas it remains to be seen whether the new mechanism devised by the accession to the ECHR will increase the coherence of the system, it will certainly not decrease the interpretative competition between the European courts, giving birth to other potential conflicts. In this respect the words pronounced by Sir Francis Jacobs are emblematic:

“Although competition is in general a valuable technique for achieving economic progress and is central to the concept of the common market, it is not clear that competition between fundamental rights instruments within the same legal order has a positive value. Moreover, in the particular case of the European Institutional complex, the constitutional entrenchment of the Charter might be seen as liable to cause confusion¹¹”.

Another problematic element provided in the draft agreement was the “co-respondent mechanism¹²” which allows “the EU to become a co-respondent to proceedings instituted against one or more of its member States and, similarly, to allow the EU member States to become co-respondents to proceedings instituted against the EU¹³”. The DAA provided for another mechanism (“prior involvement”) which will give the CJEU the opportunity to “have a voice” in “cases in which the EU is a co-respondent” by assessing the compatibility with the Convention of the relevant provision of Union law, if it has not already had the possibility to do so at an earlier stage¹⁴. Even before Opinion 2/13, scholars¹⁵ had expressed their concerns about the introduction of these mechanisms that seemed to respond to logics of judicial politics and which did not seem to have anything to do with the real aim of the accession: the increase of coherence in European fundamental rights’ protection.
Referring to the excellent comments published soon after the release of the Opinion for more details (Peers 2014a; Douglas Scott 2014; Besselink 2014, Lock 2014), here it is sufficient to recall that it has already attracted much criticism. In the worst scenario (the failure of the accession) one could say that the ECHR will nevertheless exercise that indirect influence it has always had on EU law.

However what cannot be forgotten is that in recent times the EU has been facing several issues connected to the rule of law (e.g. the Hungarian situation and the non-application of Art. 7 TEU) and the uncertainty connected to the application of the Charter of Fundamental Rights¹⁶ (Fontanelli, 2014). If this is true, all these phenomena could be also seen as pieces of a worrying mosaic.

by Giuseppe Martinico Associate Professor of Comparative Public Law, Scuola Superiore Sant’Anna in Pisa.

References

• Besselink Leonard, 2014, “Acceding to the ECHR notwithstanding the Court of Justice Opinion 2/13”, available at: http://www.verfassungsblog.de/acceding-echr-notwithstanding-court-justice-opinion-213/#.VLuFetJMwic.

• Curtin Deirdre, 1993, “The Constitutional Structure of the Union: A Europe of Bits and Pieces”, Common Market Law Review, XXX(1): 17-69.

• Douglas Scott Sionaidh, 2011, “The European Union and Human Rights after the Treaty of Lisbon”, Human Rights Law Review, XI(4): 645-682.

• Douglas Scott Sionaidh, 2014, “Opinion 2/13 on EU accession to the ECHR: a Christmas bombshell from the European Court of Justice”, available at: http://www.verfassungsblog.de/opinion-213-eu-accession-echr-christmas-bombshell-european-court-justice/#.VLuW3dJMwic.

• Fontanelli Filippo, 2014, “Implementation of EU Law through Domestic Measures after Fransson: the Court of Justice Buys Time and “Non-preclusion” Troubles Loom Large”, European Law Review, 682-700.

• Jacobs Francis, 2005, “The European Convention on Human Rights, the EU Charter of Fundamental Rights and the European Court of Justice”, available at: www.ecln.net/elements/conferences/book_berlin/jacobs.pdf.

• Lavranos Nikolaos, 2008, “Towards a Solange-Method between international courts and tribunals?”, in Shany Yuval and Broude Tomer (eds), The Shifting Allocation of Authority in International Law: Considering Sovereignty, Supremacy and Subsidiarity, Hart Publishing, Oxford, 217-235.

• Lock Tobias, 2011a, “EU Accession to the ECHR: Consequences for the European Court of Justice”, available at: www.euce.org.

• Lock Tobias, 2011b, “Walking on a tightrope: the draft accession agreement and the autonomy of the EU legal order”, Common Market Law Review, XLVIII(4): 1025-1054.

• Lock Tobias, 2014, “Oops! We did it again – the CJEU’s Opinion on EU Accession to the ECHR”, available at www.verfassungsblog.de/en/oops-das-gutachten-des-eugh-zum-emrk-betritt-der-eu/#.VMEt3Eio9dg.

• Mendez Mario, 2010 “The Legal Effect of Community Agreements: Maximalist Treaty Enforcement and Judicial Avoidance Techniques”, European Journal of International Law, XXI(1): 83-104.

• Peers Steve, 2014a, “The CJEU and the EU’s accession to the ECHR: a clear and present danger to human rights protection”, available at: http://eulawanalysis.blogspot.co.uk/2014/12/the-cjeu-and-eus-accession-to-echr.html.

• Peers Steve, 2014b, “Building the EU Judicial System: Politicians 1, (Judicial) Architects 0”, available at: http://eulawanalysis.blogspot.it/search?updated-max=2014-11-28T03:01:00-08:00&max-results=7&start=23&by-date=false.

• Zucca Lorenzo, 2011, “Monism and fundamental rights in Europe and beyond”, paper presented at the workshop ‘How Constitutional is Transnational Law?”, Scuola Superiore Sant’Anna, Pisa, 23-24 September 2011.

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note¹ Opinion 2/13, http://curia.europa.eu/juris/liste.jsf?num=C-2/13.

note² ECtHR, Cantoni versus France, 1996, http://cmiskp.echr.coe.int/tkp197/view.asp?item=1&portal=hbkm&action=html&highlight=cantoni&sessionid=79242172&skin=hudoc-en.

note³ ECtHR, Turizm v. Irlanda, www.echr.coe.int/ECHR/FR/Header/Case-Law/Hudoc/Hudoc+database. See also the judgement of the CJEU, C-84/95, Bosphorus Airways, ECR., 1996, I-3953. On the similarity between Solange and Bosphorus, see: Lavranos 2008.

note⁴ In the Mox Plant case the CJEU recalled that: “The obligation devolving on Member States, set out in Article 292 EC, to have recourse to the Community judicial system and to respect the Court’s exclusive jurisdiction, which is a fundamental feature of that system, must be understood as a specific expression of the Member States’ more general duty of loyalty resulting from Article 10 EC. It is for that reason unnecessary to find that there has been a failure to comply with the general obligations contained in Article 10 EC if a failure to comply with the more specific Community obligations devolving on a Member State pursuant to Article 292 EC has already been established”, Case C- 459/03, European Commission c. Ireland, ECR., 2006, I-4635.

note⁵ “Relating to Article 6(2) of the Treaty on European Union on the Accession of the Union to the European Convention on the Protection of Human Rights and Fundamental Freedoms”, available at the following URL: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2010:083:0201:0328:EN:PDF.

note⁶ On this see: Mendez 2010.

note⁷ See “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”, available at http://curia.europa.eu/jcms/jcms/P_64268/.

note⁸ Draft revised agreement on the accession of the European Union to the Convention for the Protection of Human Rights and Fundamental Freedoms, http://www.coe.int/t/dghl/standardsetting/hrpolicy/Accession/Meeting_reports/47_1%282013%29008rev2_EN.pdf.

note⁹ See, for instance, Zucca 2011.

note¹⁰ On this see: Lock 2011.

note¹¹ See the conclusions of Jacobs 2005.

note¹² On this see: Lock 2011.

note¹³ Art. 3 of the DAA “1. Article 36 of the Convention shall be amended as follows: a. the heading of Article 36 of the Convention shall be amended to read as follows:
“Third party intervention and co-respondent”;
b. a new paragraph 4 shall be added at the end of Article 36 of the Convention, which shall read as follows:
“4. The European Union or a member State of the European Union may become a co-respondent to proceedings by decision of the Court in the circumstances set out in the Agreement on the Accession of the European Union to the Convention for the Protection of Human Rights and Fundamental Freedoms. A co-respondent is a party to the case. The admissibility of an application shall be assessed without regard to the participation of a co-respondent in the proceedings.”
2. Where an application is directed against one or more member States of the European Union, the European Union may become a co-respondent to the proceedings in respect of an alleged violation notified by the Court if it appears that such allegation calls into question the compatibility with the rights at issue defined in the Convention or in the protocols to which the European Union has acceded of a provision of European Union law, including decisions taken under the Treaty on European Union and under the Treaty on the Functioning of the European Union, notably where that violation could have been avoided only by disregarding an obligation under European Union law.
3. Where an application is directed against the European Union, the European Union member States may become co-respondents to the proceedings in respect of an alleged violation notified by the Court if it appears that such allegation calls into question the compatibility with the rights at issue defined in the Convention or in the protocols to which the European Union has acceded of a provision of the Treaty on European Union, the Treaty on the Functioning of the European Union or any other provision having the same legal value pursuant to those instruments, notably where that violation could have been avoided only by disregarding an obligation under those instruments.
4. Where an application is directed against and notified to both the European Union and one or more of its member States, the status of any respondent may be changed to that of a co-respondent if the conditions in paragraph 2 or paragraph 3 of this article are met.
5. A High Contracting Party shall become a co-respondent either by accepting an invitation from the Court or by decision of the Court upon the request of that High Contracting Party. When inviting a High Contracting Party to become co-respondent, and when deciding upon a request to that effect, the Court shall seek the views of all parties to the proceedings. When deciding upon such a request, the Court shall assess whether, in the light of the reasons given by the High Contracting Party concerned, it is plausible that the conditions in paragraph 2 or paragraph 3 of this article are met.
6. 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, and thereafter for the parties to make observations to the Court. The European Union shall ensure that such assessment is made quickly so that the proceedings before the Court are not unduly delayed. The provisions of this paragraph shall not affect the powers of the Court.
7. If the violation in respect of which a High Contracting Party is a co-respondent to the proceedings is established, the respondent and the co-respondent shall be jointly responsible for that violation, unless the Court, on the basis of the reasons given by the respondent and the co-respondent, and having sought the views of the applicant, decides that only one of them be held responsible”.
8. This article shall apply to applications submitted from the date of entry into force of this Agreement.

note¹⁴ Appendix V 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, p. 66: “Assessing the compatibility with the Convention shall mean to rule on the validity of a legal provision contained in acts of the EU institutions, bodies, offices or agencies, or on the interpretation of a provision of the TEU, the TFEU or of any other provision having the same legal value pursuant to those instruments. Such assessment should take place before the Court decides on the merits of the application. This procedure, which is inspired by the principle of subsidiarity, only applies in cases in which the EU has the status of a co-respondent. It is understood that the parties involved – including the applicant, who will be given the possibility to obtain legal aid – will have the opportunity to make observations in the procedure before the CJEU”, http://www.coe.int/t/dghl/standardsetting/hrpolicy/Accession/Meeting_reports/47_1%282013%29008rev2_EN.pdf .

note¹⁵ For instance: Douglas Scott, 2011.

note¹⁶ Case C‑617/10, Åklagaren v Hans Åkerberg Fransson, 2013, www.curia.europa.eu, C-206/13 Siragusa, 2014, www.curia.europa.eu. On this and other cases see: Fontanelli, 2014.