The potential inclusion of the EU into the ECHR has been a long-awaited development. With the necessary Treaty modifications in the Lisbon Treaty and a negotiated accession treaty by 2013, it appeared that the CJEU’s December 2014 ruling would solidify this union. However, the Court’s judgment (Opinion 2/13), which was subject to criticism on this blog, unexpectedly disrupted the accession process.

However, the process was resurrected in 2019 and has advanced quickly since then. The following two blog entries, written by Anita Kovacs and Stian Øby Johansen, respectively, provide an update and analysis of the most recent developments by providing a general description of the procedure and a more thorough examination of the problems. The observations made by Stian Øby Johansen are partially taken from entries that were previously published here and here.

The EU’s accession to the ECHR: A complex history of negotiations - It’s Complicated

Anita Kovacs, MA in EU Law, King’s College London

For several decades, the European Union (EU)’s potential membership in the European Convention of Human Rights (ECHR) has been a topic of discussion among European leaders. This post will briefly review previous occurrences, offer some background on the recently resurrected discussions, and speculate about what may happen next.

Past

The Court of Justice of the European Union (CJEU) issued its first decision regarding the EU’s potential membership in the ECHR in 1996 (Opinion 2/94). The court determined at the time that the European Community lacked the legal capacity to join the ECHR (paras 34–35).

When the Lisbon Treaty came into effect in 2009, it established a legal foundation for accession. According to Article 6(2) TEU, the EU is required to join the ECHR, making this a legal obligation.

The 14th Protocol to the ECHR prepared the ground for accession by adding Article 59(2) ECHR, which states that the EU may join the ECHR.

The Accession Agreement was presented to the CJEU in 2013 in order to get an opinion on whether it complied with the treaties in accordance with Article 218(11) TFEU.

The court issued its landmark Opinion 2/13 the following year (discussed here), and despite strong arguments in favor of accession, it determined that the Accession Agreement was incompatible with EU law (para 258). It is intriguing to note that the European Commission, with the support of observing Member States (para 109), promoted the opposite stance (para 73).

Advocate General Kokott proposed a “qualified approval” of the Accession Agreement, implying that while the agreement is generally consistent with EU law, some adjustments are still necessary (paras 278–280). She also offered some ideas on how to reconcile the requirements of EU law with the accession (e.g., para 234).

Present

In the latter half of 2019, the EU and the Council of Europe both expressed a desire to move forward with discussions about the EU’s membership. The negotiations will occur as part of an ad hoc Group made up of one EU representative and members from each of the Council of Europe’s 47 member states (“47+1 Group”).

The parties have formally agreed to restart talks on the EU’s membership in the ECHR as of January 2020. (For information on the accession process, visit the Council of Europe’s website.)

At a first informal meeting in June 2020, the European Commission stated that it intended to carry out the accession through “modulations” to the Accession Agreement. These should guarantee that the EU’s distinctive qualities are preserved while yet adhering to the criteria outlined in Opinion 2/13. The speakers agreed that the CJEU’s concerns would necessitate considerable effort but were not insurmountable. It was made abundantly clear that the current discussions did not mark a fresh start for the accession process but rather picked up where they left off in 2013. This indicates that the Draft Accession Agreement establishes the parameters for the coming sessions and serves as a framework for the parties to operate within.

The European Commission identified four key areas of concern for the impending negotiations: the EU’s specific processes used in cases before the ECtHR, inter-party applications made in accordance with Article 33 ECHR, requests for advisory opinions from national courts to the European Convention of Human Rights made in accordance with Protocol No. 16, the principle of mutual trust, and the EU’s Common Foreign and Security Policy (CFSP).

These subjects have been included in the agenda for the sixth round of negotiations, which will be the first formal meeting on accession since Opinion 2/13. In order to get ready for this meeting, the Chair of the 47+1 Group further separated them into subordinate concerns. A number of factors that may be important in finding a solution to the ten concerns mentioned were also covered in the Chair’s paper to guide the discussions.

Due to the Covid-19 pandemic, the meeting that was originally planned for March 2020 has been moved to September 29–October 1, 2020. (sixth round of negotiations). It is encouraging that the 47+1 Group decided at this meeting to increase the number of participants and the regularity of consultations with NGOs and other members of civil society. The meeting provided a summary of the various viewpoints on the concerns brought up in Opinion 2/13. However, the main debates were postponed until the following gathering.

The seventh round of negotiations, which took place from November 24 to 26, 2020, focused mostly on the EU’s unique procedures used in cases before the ECtHR, inter-party applications made in accordance with Article 33 ECHR, and requests for advisory opinions made in accordance with Protocol No. 16. Numerous ideas were floated, the majority of which required more research. Without a doubt, the meeting has shown a desire to come up with workable solutions and constructively develop them.

The next meeting is scheduled for February 2–4, 2021, at which point the subjects of mutual trust and the CFSP will be covered. The ninth round of negotiations is expected to take place in the latter half of March 2021.

Future

The European Parliament must give its consent to the Accession Agreement in accordance with Article 218(6) TFEU. Only then may the Council approve a resolution that approves the agreement. The Accession Agreement should be signed after it has been ratified by the EU member states in line with their constitutional requirements, and the Council must do so unanimously (Article 218(8) TFEU).

As was previously indicated, the European Commission filed a request in accordance with the procedure outlined in Article 218(11) TFEU, which resulted in the issuance of Opinion 2/13. According to this clause, it was possible to receive an opinion on whether an agreement was consistent with the treaties. As a result, it is reasonable to wonder whether the CJEU will issue a new opinion on the revised Accession Agreement. In its request, the Commission emphasizes points that the CJEU has frequently emphasized in its opinions (see Opinions 2/13 and 2/94 for examples). The goal of such opinions was to “prevent problems that would come from legal disputes about the compatibility with the Treaty of international agreements that are binding on the Union” (para 60). The notion that the implementation of internal rules should be supported by the knowledge that the foundation for these rules is consistent with primary EU law is another justification for an opinion.

The CJEU might not be the only body to have the opportunity to rule on the revised Accession Agreement. As Switzerland suggested at the June 2020 informal meeting, the ECtHR could be asked to provide its opinion on the agreement. This chance might be made possible by Article 47 ECHR. At the September meeting, the prospect of such an opinion was brought up once more, along with the caveat that the revised agreement would first need to be presented to the Council of Ministers for approval.

Following CJEU approval, the Council of Ministers must adopt the revised Accession Agreement and then make it available for signatures. According to Article 59 ECHR, each of the Convention’s 47 High Contracting Parties will be required to ratify the revised agreement.

The meeting in June 2020 highlighted the significant hazards associated with a failed accession. Participants concurred that the problem required immediate attention and action. The objectives of legal certainty and uniformity in the application of human rights protections should be kept in mind at all times.

Even though it is unclear whether this round of negotiations will take as long as the previous one, which took three years, it is clear that we will need to exercise patience while we wait for a concrete outcome.

Although Opinion 2/13 dashed our hopes, the 47+1 Group is not starting from scratch this time. Having said that, it is clear that everyone concerned needs to put a lot of effort into this project.

Let’s hope that the CJEU will wed the EU and the ECHR once the marriage contract has been finalized so that they can finally declare their relationship to be “married.”

The EU’s accession to the ECHR: specifics of the resumed discussions

Stian Øby Johansen, an associate professor at the University of Oslo’s Faculty of Law

The initial discussion for renegotiation

The report from the first renegotiation meeting, also known as the sixth negotiating meeting in CoE terminology to maintain continuity with the prior round, should be reviewed in conjunction with another important document, the “Paper by the Chair to steer the discussion at the 6th meeting of the CDDH ad hoc group (47+1),” which was created to provide structure for the discussions. Almost immediately following its approval in October 2019, a copy of the EU Commission’s negotiating mandate, a document that was closely guarded during the initial round of negotiations, was leaked.

The main challenges confronting the negotiators

The Chair sought to structure the negotiations around four “baskets” of topics in her paper:

Basket 1: Processes used by the EU in cases before the ECtHR (co-respondent mechanism, prior CJEU involvement, shared responsibility).

Basket 2: Applying inter-party applications and seeking an advisory opinion from the ECtHR (Articles 33 and 16 of the ECHR).

Basket 3: EU member states’ mutual trust.

Basket 4: Actions taken by the EU in relation to the Common Foreign and Security Policy.

The negotiators had access to a range of “tools,” according to the Chair’s paper, such as changes to the ECHR and the Draft Accession Agreement (DAA), straightforward explanations of the DAA’s Explanatory Report, and pronouncements made when the DAA was signed. The Chair’s paper then moved on to examine the concerns in each basket, identifying the pertinent sections of the DAA and Opinion 2/13 for each issue as well as potential actions the 47+1 Group could take using the “tools” at its disposal.

In other words, the Chair sought to take a proactive approach to make sure the conversations were focused on the most important topics. This method appears appropriate to me given the complexity of the work at hand. In fact, the Chair’s active participation was essential in bringing the initial round of discussions to a successful conclusion. Then, as now, the Norwegian delegate Tonje Meinich presided over the discussions, and in 2019 she wrote an article for The International Journal of Human Rights describing her interactions during the first round of discussions.

The negotiating parties appear to have reacted favorably to the Chair’s paper. The meeting agenda was clearly written with the suggested “baskets” in mind. However, at least two delegations stated their intentions to bring up more topics during these renegotiations during the negotiation meeting (Meeting report, para 41). Additionally, one delegation inquired as to whether the ECtHR might provide an opinion on the renegotiated DAA (Meeting report, para 43).

Advancements Achieved at the Sixth Negotiating Session

The baskets were covered in the sequence that they were presented at the sixth negotiating meeting. According to the meeting report, it looks that the first two baskets received the most in-depth consideration, with some progress being made, but the final two baskets were only briefly covered.

No specific, written plans for changing the DAA or the other draught accession instruments appear to have been presented during the sixth round of negotiations. The discussions, however, generally advanced to the point where the Chair requested that concrete textual suggestions be made for consideration at the (seventh) negotiating meeting.

In the following, I’ll highlight the key points from the sixth round of discussions for each basket and evaluate the progress achieved.

EU-specific mechanisms of the procedure before the ECtHR (“Basket 1”)

Under this heading, a variety of sub-issues were covered, such as the co-called co-respondent mechanism, the co-called prior involvement procedure, and the conduct attribution/responsibility allocation between the Union and its Member States. According to the CJEU, they all have the drawback of possibly requiring the ECtHR to interpret how responsibilities are divided internally between the Union and its Member States.

Removing any threshold requirements for activating the purely procedural mechanisms—the co-respondent mechanism and the prior involvement procedure—would be the most clear-cut fix. This is due to the fact that, in accordance with the 2013 DAA, it was up to the ECtHR to determine whether those requirements had been satisfied. Despite the thresholds being so minimal that they practically amounted to a review of whether there had been an abuse of process, the CJEU nonetheless found them to be against EU law in Opinion 2/13.

During the sixth round of negotiations, it was discussed making both the co-respondent process and the prior engagement procedure unconditional rights. With the exception of one delegation, there appears to have been general support for making the CJEU’s prior involvement an unconditional right (Meeting report, para 17). However, there were differing opinions on eliminating the bar for activating the co-respondent mechanism (Meeting report, paras 13–14).

In a case involving both the Union and one or more Member States, the ECtHR’s incidental decisions regarding conduct attribution may clearly require an assessment of how responsibilities are distributed. This topic received extensive discussion in the run-up to the 2013 DAA discussions. When white smoke finally appeared, Article 3(7) of the 2013 DAA included a vague clause that provided for the shared accountability of all co-respondents (the Union and one or more Member States) “unless the Court decides that only one of them be held responsible.” Depending on how you interpret this clause, it could be anything from a strong assumption of shared responsibility to a carte blanche for the ECtHR to decide who is accountable.

The CJEU determined in Opinion 2/13 that article 3(7) of the 2013 DAA was incompatible with Union law simply because of the possibility that the ECtHR might use the shared responsibility exception (paras 229–234). In fact, the CJEU appears to contend that the provision’s mere existence is against Union law, even if it is understood to be a practically insurmountable presumption.

The most obvious “fix” for this CJEU complaint is to simply remove the exception. Although some people supported this notion during the sixth round of negotiations, it was not universally accepted (Meeting report, para 16). One delegation also “as a point of principle” opposed the notion that a participant in ECtHR proceedings should be able to “establish the guidelines for how it will participate” and hence enjoy a privileged status (ibid). The Chair requested specific drafting recommendations for the (seventh) negotiating session that would follow. Based on my observations from the discussions that resulted in the 2013 DAA, I anticipate that the differences between the “EU side” and the Non-EU CoE States will become very obvious once they begin to consider specific proposals.

The seemingly complicated subject of how to handle ECHR reservations made by an EU Member State that is also a co-respondent with the Union was also covered. Interestingly, though, the 47+1 were able to come to an understanding that “such reservation would remain valid” (Meeting report, para 15). The following negotiating session was supposed to cover concrete drafting recommendations for putting that agreement into practice.

The negotiators also covered the demand for a system that would systematically notify the Union of cases before the ECtHR where the co-respondent process and prior involvement procedure might be applicable under this basket (Meeting report, para 18). It should come as no surprise that some people questioned why the ECtHR should be in charge of informing the Union rather than the EU Member States. In fact, when determining whether a case also raises matters of Union law, the EU Member States are likely in a better position to do so than the ECtHR. However, no conclusive response was given at the sixth negotiating session. All possibilities remained available, and this subject will be revisited at the seventh negotiating session.

Operation of inter-party applications and of references for an advisory opinion by the ECtHR (“Basket 2”)

The fact that EU member states might theoretically utilize these two seemingly unrelated strategies to circumvent TFEU rules, particularly the infamous Article 344, connects them (Meeting report, para 20), which stipulates that EU member states must utilize EU law procedures in the event of disagreements about EU law amongst themselves.

In Opinion 2/13, the CJEU stated that “only the explicit exclusion of the ECtHR’s jurisdiction under Article 33 of the ECHR over disputes between Member States […] within the scope ration material of EU law” would be compatible with Article 344 TFEU, addressing the subject of inter-party applications (ECHR article 33). (Para 213). In other words, the CJEU determined that the 2013 DAA was incompatible with that provision because of the “very existence of such a possibility”—i.e., that a Member State might initiate an inter-party lawsuit in violation of Article 344 (Opinion 2/13, para 208).

Some Non-EU CoE Members expressed strong opposition to amending the ECHR to address this CJEU criticism during the sixth negotiating session (Meeting report, para 22). These states appear to have—in my opinion, correctly—viewed this as an internal matter between the Union and its Member States. As I have previously stated, the CJEU revised Article 344 TFEU in Opinion 2/13, creating stricter standards. Because of Opinion 2/13, it is now almost difficult for the Union and its Member States to enter into international agreements with effective dispute resolution procedures. Both the wording of Article 344 TFEU and prior CJEU jurisprudence seemed to imply that the mere inclusion in an agreement of a mechanism by which Member States may violate Article 344 TFEU was not problematic.

As a result, it shouldn’t come as a surprise that I support the ECtHR Registry representative’s suggestion made during the sixth negotiating session, which was that “the very foundation of the CJEU’s statement in Opinion 2/13 that the use of Article 33 ECHR should be expressly prohibited […] would not be consistent with Convention case-law and should perhaps be reevaluated” (Meeting report, para 24). Ignoring some CJEU objections in this way, in the hopes that the CJEU has changed its mind in recent years, is definitely risky. However, I believe it is preferable to err on the side of a possible second negative Opinion than to go too far in the direction of granting the Union special treatment.

Possible “solutions” were explored, such as putting inter-party ECtHR actions on hold until the CJEU had determined whether they violated Article 344 TFEU (Meeting report, para 26). However, none of these remedies satisfy the CJEU’s actual requirements, therefore they all run the danger of receiving a second bad Opinion.

The Chair wrapped up the debate on Article 344 TFEU by stating that “no delegation had spoken out against the general idea that inter-party applications brought before the ECtHR in violation of EU law were undesirable and should be avoided” (Meeting report, para 27). She also observed that there was “sufficient interest” in looking into other options, such as putting ECtHR actions on hold (ibid).

In Opinion 2/13, the CJEU objected to national courts’ requests for advisory opinions from the ECtHR in accordance with ECHR Protocol 16 on the grounds that domestic courts could get around the preliminary reference procedure for EU law found in TFEU Article 267. (para 198). This section of Opinion 2/13 makes it clear that the CJEU’s main worry is not that it wouldn’t be consulted before the ECtHR issues an advisory opinion, but rather that a request for an advisory opinion would set off the 2013 DAA prior involvement procedure. As a result, a domestic court brings the issue before the CJEU using a procedure other than Article 267 TFEU.

This criticism was always a little perplexing. First, it is challenging to comprehend why the CJEU’s jurisdiction should be based on either Article 267 TFEU or the DAA prior involvement procedure. The CJEU never explicitly states what the issue would be. Perhaps it’s only the fact that the prior participation was supposed to follow an expedited process (2013 DAA article 3(6) and Explanatory Report para 69), possibly creating a “fast track” to a CJEU opinion in matters involving both EU law and fundamental rights? Second, the CJEU doesn’t appear to have faith that its Member States and their domestic courts will abide by the regulations. This mistrust is also apparent in the CJEU’s aforementioned concerns about Article 344 TFEU.

At the sixth round of negotiations, very little headway was made. Only two initial conclusions appear to have been reached by the 47+1 Group. First, the CJEU’s objections to ECHR Protocol 16 weren’t as strongly worded as those it had about Article 344 TFEU. Second, the existing wording of paragraph 66 of the DAA Explanatory Report “states that the application of the prior involvement-procedure would presuppose an application which the co-respondent mechanism applies.” However, it is unclear what the latter point of agreement actually signifies or accomplishes. However, given that the 2013 DAA’s clauses addressing the co-respondent mechanism consistently employ the phrase “application,” perhaps this agreement implicitly assumes that the co-respondent mechanism does not apply to requests for advisory opinions under Protocol 16 (Article 3)? However, if the co-respondent mechanism is not used in Protocol 16 cases, the ECtHR might have to make a “Basket 1” decision about how responsibilities are divided between the Union and a Member State.

Are there any ways around these predicaments? In my opinion, there are at least two. First, EU-internal solutions are a clear option for addressing the Protocol 16 issue. A radical but successful solution would be for the Union and the EU Member States to come to an agreement not to ratify Protocol 16. (or for those who have already done so, to leave). Along the same lines, less drastic measures could be taken.

Second, there is always the possibility of relying on the CJEU to have changed its mind and forgoing any substantive revisions to the 2013 DAA. Given the CJEU’s distrustful attitude toward its Member States on the “Basket 2” concerns in Opinion 2/13, this might be a feasible, and maybe even preferred, course of action. However, it never hurts to carefully consider different solutions.

The principle of mutual trust between EU Member States (“Basket 3”)

The principle of mutual trust in Union law may clash with the ECHR system if applied rigorously. This is due to the fact that, according to the CJEU in Opinion 2/13, this idea “requires EU Member States to “presume that other Member States have upheld fundamental rights” in the Area of Freedom, Security and Justice (AFSJ) (para 198, emphasis added). Therefore, barring exceptional circumstances, an EU member state may “verify whether that other Member State has actually, in a specific case, observed […] fundamental rights” (ibid). In contrast, the ECHR’s non-refoulement commitments did not make a distinction between whether or not the participating High Contracting Parties belonged to the same economic integration group.

Both courts have somewhat dismounted their high horses since 2014.

The ECtHR Grand Chamber recognized the “significance of the mutual recognition mechanisms” for Union law in Avotiņš (which I discussed here). The ECtHR’s recognition of the principle’s significance, however, came right before it stated that “the goal of effectiveness sought by some of the procedures employed [in the AFSJ, such as mutual trust,] leads to the review of the observance of fundamental rights being strictly controlled or even constrained” (para 114).

For its part, the CJEU has considerably expanded the exceptions to mutual trust in cases involving fundamental rights since 2014, most notably in the matters of Petruhhin (discussed here) and Jawo. It may no longer imply blind trust, but exceptions to mutual trust are still, well, exceptional.

The 47+1 group merely touched the surface of this basket during the sixth round of negotiations, briefly noting the “increased convergence” between the two courts’ case law and assigning the CoE secretariat the responsibility of compiling the case law for the upcoming (seventh) negotiation meeting. (this compilation was later published on the CoE accession website.

EU acts in the area of the Common Foreign and Security Policy (“Basket 4”)

The 2013 DAA sought to give the ECtHR authority over behavior taken out under the EU’s Common Foreign and Security Policy (CFSP), a program that is at least partially outside of the purview of the CJEU. This resulted from the 2013 DAA’s straightforward failure to differentiate between policy areas. In fact, this outcome appears to be required by the idea that the EU should join the ECHR on an equal footing with other High Contracting Parties. No ECHR signatory has the right to exclude any policy areas from the ECtHR’s purview.

In a move that Steve Peers aptly dubbed “judicial politics of the playground,”, the CJEU held in Opinion 2/13 that because it lacked jurisdiction over (parts of) the CFSP, no other international court could either. The CJEU claimed that the 2013 DAA “failed to take into account the unique characteristics of EU law with regard to […] judicial review […] in CFSP matters” by permitting the ECtHR to rule on cases involving CFSP-related conduct (Opinion 2/13, para 257).

Finding a solution to this problem without jeopardizing the ECHR system is obviously difficult. Even though the CJEU’s case law on the scope of the CFSP jurisdictional exemption has changed since 2014 (see this discussion of the most recent pertinent judgment, which includes more links), it is still true that certain CFSP actions—including those that might violate human rights—are excluded (see e.g., Johansen 2020, Ch 4, particularly at 142–144). As a result, the CJEU’s jurisdiction over CFSP matters has not (yet) been expanded to save the DAA.

At the sixth round of negotiations, little headway was made in identifying a solution. There was discussion of well-known ideas like incorporating a “clear attribution clause” (Meeting report, paras 37–38). However, because the CJEU’s objections in Opinion 2/13 were founded on its lack of authority over CFSP actions, it is unclear what an attribution clause would accomplish. For the purposes of the ECHR, automatically attributing CFSP acts to the Member States—either jointly or separately from the Union—does not seem to have any bearing on this problem. It wouldn’t exempt the CFSP from the ECtHR’s purview, and it certainly wouldn’t increase the CJEU’s.

In the end, the Chair came to the apathetic conclusion that “there was a common goal by the delegations […] that, in order to avoid ‘black holes’ in the European human rights protection, the Convention system should be able to accommodate all acts in the CFSP area. Ultimately, the challenge was to determine the best course of action to take in order to achieve this (Meeting report, para 39).

Additional Issues Raised

Some delegations brought up extra points that weren’t covered by the four “baskets” at the end of the sixth negotiation session.

The Chair and the CoE Secretariat first brought up the subject of how ECHR article 53 and EU Charter of Fundamental Rights article 53 related to the minimum standards clauses (Meeting report, para 40). In order to address the CJEU’s concerns about the coordination of these two provisions in Opinion 2/13, it was initially proposed that their connection be clarified in the DAA’s Explanatory Report.

Two delegations then noted that there had been modifications to the CoE since the 2013 DAA’s adoption, necessitating a revision of articles 6, 7, and 8 of the DAA (dealing with the Union’s participation in CoE organs and its financial contribution to the CoE) to reflect these changes (Meeting report, para 41). These delegations also stated that they would bring up further points, as was already indicated.

One delegation finally inquired about the possibility of requesting an opinion from the ECtHR on the renegotiated DAA, as was previously mentioned (Meeting report, para 43). Asking the ECtHR for such an opinion would be technically permissible in accordance with ECHR article 47. I believe that doing so would be a wise move. When the CJEU is inevitably asked to provide its opinion on the renegotiated DAA, a favorable opinion from the ECtHR may be able to sway the court. Furthermore, it’s unlikely that waiting for an ECtHR opinion will cause much of a delay. It might even be possible to simultaneously request opinions from both courts. If so, I anticipate that the ECtHR will be able to provide an opinion more quickly than the CJEU. The last time the ECtHR was asked to provide an opinion under ECHR article 47, it only took about six months.

Conclusion

Although negotiations have begun, it is already obvious that they will require some time. Several of the CJEU’s objections in Opinion 2/13 are with regard to topics that were very sensitive during the DAA discussions in 2013. From the perspective of the non-EU Member States of the CoE, the negotiations are essentially being reopened in order to address largely internal matters between the EU and its Member States. This is a recurring theme in EU foreign policy: the outsourcing of matters that, at least in my opinion, should be handled internally.

The negotiations are expected to be rather difficult in light of this. However, it is hoped that these challenges can be resolved without jeopardizing the ECHR system. If not, there is only one option left: change EU primary law to counteract the effects of Opinion 2/13.

The Second Renegotiation Meeting

Despite some progress being achieved at the meeting on November 24–26, 2020 (which I will refer to as the 7th meeting from the commencement of discussions), it is becoming more and more evident from reading the meeting report that no quick resolutions are in sight.

The following is a quick summary and assessment of the progress accomplished. I’ll start by listing the topics that weren’t covered at all during the seventh meeting, followed by the ones that were. Finally, I’ll briefly discuss other matters covered at the seventh meeting, such as the dialogue with civil society.

Issues Postponed for Future Meetings

Only topics pertaining to the first two of the four baskets previously established were covered during the meeting. The final two, and arguably the most challenging ones, which dealt with mutual trust between EU member states (“Basket 3”) and the status of EU actions in the CFSP sector that are outside the purview of the CJEU, were not covered at all (“Basket 4”).

Although no specific justification was given for not addressing problems related to “Baskets” 3 and 4, it’s likely that there wasn’t enough time. The 47+1 group will revisit the matter at its upcoming (8th) meeting, according to the meeting report.

Issues Covered at the Seventh Meeting

The EU side had presented concrete suggestions concerning both “Baskets” 1 and 2 since the sixth meeting. Therefore, these two issues were front and center at the seventh gathering.

Regrettably, the general public is not allowed access to the precise proposals. The paper in question is most likely the “Negotiation Document presented by the European Union on 2 November 2020,” which is designated as “restricted,” according to the list of working documents attached to the meeting report. A certain amount of (qualified) guesswork is required when evaluating the meeting report because there is no information available on the precise proposal.

“BASKET 1”: MECHANISMS SPECIFIC TO THE EU USED IN ECTHR PROCEEDINGS

The 2013 DAA, article 3(2), stated that the Union could only join a case against a Member State as a “co-respondent” if certain requirements were satisfied. A crucial factor was whether the complainant’s charges “appear” to call into question the compatibility of the Union’s founding treaties with the ECHR. The ECtHR was to determine whether it was “plausible” that this low threshold condition (“appears”) was met, as stated in article 3(5) of the 2013 DAA.

The CJEU determined in Opinion 2/13 that this was unacceptable. That was because it might have given the