Catherine Barnard, Trinity College, Cambridge

Introduction

Opinion 2/13 is a legal judgment with significant political consequences. It provides a thorough examination of the Draft Accession Agreement (DAA) clauses and fundamental EU law principles. While some have offered helpful explanations of the Opinion, others have criticized it intensely. This piece aims to explore a more favorable interpretation of the Opinion, focusing on three key points: the potential oversight of the bigger picture during negotiations, whether Opinion 2/13 was an act of judicial self-importance, and its impact on the relationship between the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR).

Was there a failure to see the wood for the trees in the negotiations?

While Member States and the Advocate General concentrated on the DAA’s specific clauses and their compatibility with EU law, the CJEU seemed to perceive a lack of attention to the broader context. The negotiators, in the Court’s view, overlooked the fact that the EU is not a state and that EU law possesses distinct characteristics not fully addressed in the DAA.

Essentially, the DAA concentrated on minor details rather than the foundational soundness of the entire agreement. The CJEU, prioritizing the foundational aspects, dedicated a substantial portion of its Opinion to outlining the “specific characteristics” of EU law that it believed accession to the ECHR might undermine. These characteristics include supremacy, direct effect, conferral of powers, institutional structure, the principle of mutual trust, and fundamental rights. The Court stressed the significance of EU law’s autonomy from both national and international law. This autonomy, along with its unique traits, was safeguarded by the judicial system designed to maintain consistency in EU law interpretation. Central to this system is the Article 267 TFEU preliminary reference procedure. This context, the Court argued, was crucial for evaluating the DAA.

The Court, by outlining this framework, aimed to highlight that any element of the Accession Agreement that jeopardized this core structure contradicted EU law. The discussion about these specific characteristics provided the necessary backdrop for the Court to evaluate not just the Member States’ specific concerns but also the broader constitutional implications.

This wider constitutional context clarifies the emphasis on three significant issues: Article 53, mutual trust, and Protocol No. 16, which received limited attention in the submissions and the Advocate General’s opinion. Protocol No. 16, which allows national courts of last resort to seek interpretations of the Convention from the ECtHR, was a particularly unexpected inclusion. Though concluded after the DAA and not yet in force, its existence provided the CJEU an opportunity to express its views on the critical role of Article 267 TFEU within the EU system and how the reference procedure could be compromised.

In essence, the CJEU felt that the EU’s negotiators had fixated on individual aspects while neglecting the crucial constitutional context. Addressing concerns regarding potential violations of Article 267 TFEU, along with issues related to Article 53 TFEU, the principle of mutual trust, and Protocol No. 16, was deemed essential before accession could proceed.

Was Opinion 2/13 a case of judicial vanity?

Critics of Opinion 2/13 contend that the CJEU, prioritizing its supremacy, intentionally contradicted the Member States, the Advocate General (with reservations), and the Presidents’ joint communication, which all indicated support for the DAA. Even if accurate, the Court’s reluctance to entirely submit to the authority of a “higher” court might be justifiable.

The CJEU, still a relatively young court compared to the US Supreme Court, continuously addresses challenges to its authority from Member States’ Constitutional Courts. It has largely repelled these challenges, notably rebuffing a challenge from the UN in the Kadi I case. In that instance, the Court’s assertion of EU law’s autonomy was generally applauded. However, the CJEU might now be perceived as overly assertive. Subordination to a “higher” court could imply vulnerability, a notion the Court has always been sensitive to.

However, the narrative of judicial vanity is debatable. The CJEU acknowledges that EU law and the Court itself are subject to external review. It recognizes the binding nature of the ECtHR’s interpretations of the ECHR on the EU and its institutions, including the CJEU, under international law. The Court also acknowledges the EU’s obligation to join the Convention.

Nevertheless, the Court emphasizes that accession must not impact the EU’s competences as defined in the Treaties and must not interfere with the distinctive attributes of the EU and EU law. This subtle shift in emphasis highlights that Article 6(2) TEU does not mandate absolute accession but rather a conditional one.

What are the effects of the Opinion on relations with the ECtHR?

Those who view Opinion 2/13 as an act of judicial vanity believe it severely harms the relationship between the CJEU and the ECtHR. The timing of the Opinion’s release, shortly before Christmas, might suggest an attempt to minimize negative publicity.

However, a closer examination reveals a more nuanced picture. The CJEU refrains from criticizing the ECtHR or its jurisprudence; its concerns seem directed at the EU’s negotiating team.

Furthermore, the Court provides a roadmap for improvement, outlining specific areas for the EU’s negotiating team to address. While some of these points are relatively simple to resolve, others, particularly those concerning the CFSP, mutual trust, Article 53, and Protocol 16, may prove more challenging. Renegotiating the DAA with several resolute states, both within and outside the EU, presents significant obstacles.

Crucially, the CJEU did not definitively block EU accession to the ECHR. While acknowledging the Opinion’s potential to disappoint, judicial comity is likely to encourage private dialogue between the two Courts.

Conclusions

Opinion 2/13 has drawn considerable criticism, largely due to the dashed hopes associated with EU accession to the ECHR. One interpretation suggests the CJEU aimed to undermine the ECtHR and reassert its own authority, framing the judgment as a political move disguised in legal reasoning. Alternatively, the CJEU might have been focused on reaffirming the specific features of EU law that it felt were inadequately acknowledged during negotiations, making it a predominantly legal decision.

However, there might be a positive outcome. By taking a stance that suggests it is capable of upholding human rights, the CJEU might now be compelled to demonstrate this ability. We may witness more rulings like Abdida, delivered alongside Opinion 2/13, where the Court adopts a pro-human rights position while referencing ECtHR case law. Politically, this approach is crucial not only for mending relations with the ECtHR but also for signaling to its own (potentially troublesome) constitutional courts that the same standards apply to all.