The CJEU’s Opinion on EU Accession to the ECHR: Taking the Football Home
Steve Peers
The Court of Justice of the European Union (CJEU) finally issued its ruling on the EU’s proposed accession to the European Convention on Human Rights (ECHR). This intricate judgment brings up numerous legal points. This post will present a concise summary of the ruling, examine its implications, and offer an initial critique of the Court’s reasoning. In essence, the Court’s ruling appears deeply flawed, prioritizing the preservation of EU law’s core elements over the fundamental values upon which the Union was built.
Background
In 1996, the CJEU ruled in Opinion 2/94 that the European Community (EC), as it was then known, lacked the legal capacity to join the ECHR under its existing framework. This decision could only be reversed through a Treaty amendment, which occurred in 2009 with the Treaty of Lisbon. The treaty introduced Article 6(2) TEU, mandating the EU to accede to the ECHR. It also included Protocol 8, outlining aspects of the accession, and a Declaration stipulating that accession must respect the “specific characteristics” of EU law.
However, these new provisions couldn’t automatically make the EU a party to the ECHR. Achieving this required the EU to negotiate a specific accession treaty with the Council of Europe. This accession treaty was reached in principle in 2013 after extensive negotiations. Today’s CJEU ruling examines this treaty’s compatibility with EU law.
Summary
Firstly, the CJEU deemed the case admissible (paras 144-52), despite the absence of drafted internal rules governing the EU’s participation in the ECHR. Notably, the CJEU stated that these internal rules wouldn’t be part of the opinion even if drafted, addressing reported concerns from the UK government.
Moving on to preliminary points (paras 153-77), the Court explicitly affirmed for the first time that the EU is not a state (para 156) and essentially confirmed the EU system’s sui generis nature (para 158). The Court also underscored the importance of upholding the primacy and direct effect of EU law, referencing the EU’s objective of “ever closer union.”
The Court then determined that the draft agreement contradicted EU law for five primary reasons.
Firstly, it didn’t consider the unique characteristics of EU law (paras 179-200) in three ways. It didn’t limit Member States from having stronger human rights protections than EU law, even though the CJEU had established in the Melloni judgment (2013) that Member States couldn’t surpass the EU Charter of Rights when EU law provided complete harmonization. The Court believes this rule applies to the ECHR, and the draft agreement failed to reflect this. Furthermore, the agreement didn’t incorporate the “mutual trust” principle in Justice and Home Affairs (JHA), which requires Member States to assume that other Member States are adhering to EU law, especially regarding fundamental rights recognized by EU law, except in extraordinary situations. Finally, the agreement didn’t eliminate the possibility that national courts, when applying Protocol 16 of the Convention (allowing them to refer questions on ECHR interpretation to the European Court of Human Rights - ECtHR), would seek the ECtHR’s opinion on EU law matters before consulting the CJEU. This could bypass the EU’s preliminary ruling procedure.
Secondly, the draft agreement breached Article 344 TFEU, which grants the CJEU sole authority over resolving EU law disputes between Member States (paras 201-14), as it didn’t preclude using the ECtHR for settling such disputes.
Thirdly, the proposed co-respondent system, creating a new procedure where both the EU and a Member State could be parties in an ECtHR case, was deemed incompatible with EU law for three reasons (paras 215-35). This process would: empower the ECtHR to interpret EU law when assessing admissibility for such cases; allow an ECtHR ruling on the shared responsibility of the EU and its Member States, potentially impacting Member State reservations to the Convention; and allow the ECtHR to assign responsibility for ECHR breaches between the EU and Member States, a power reserved for the CJEU regarding EU law.
Fourthly, the draft treaty’s rules on prior CJEU involvement before ECtHR rulings on EU law were also deemed incompatible with EU law on two grounds (paras 236-48). They didn’t give the EU the sole power to determine if the CJEU had already addressed an issue, nor did they allow the CJEU to rule on the interpretation, not just the validity, of EU law.
Finally, the rules concerning the Common Foreign and Security Policy (CFSP) were deemed incompatible with EU law (paras 249-57) because they allowed a non-EU court to judicially review EU acts, even though the CJEU itself lacks such jurisdiction over most CFSP matters.
Consequences
The most immediate consequence is that EU accession to the ECHR cannot proceed based on the current agreement. The CJEU has effectively provided a list of ten required amendments for the accession agreement to be compatible with EU law. These amendments relate to: ensuring Article 53 ECHR doesn’t allow Member States to have higher human rights standards than the EU Charter when EU law is fully harmonized; clarifying that accession cannot affect the mutual trust principle in JHA matters; ensuring Protocol 16 ECHR’s use by national courts can’t undermine the EU preliminary ruling system, potentially by excluding its use in EU law matters; explicitly stating that Member States cannot bring EU law disputes before the ECtHR; guaranteeing that in the co-respondent system, the ECtHR’s admissibility assessment doesn’t include interpreting EU law; ensuring that the joint responsibility of the EU and its members for ECHR violations doesn’t affect Member State reservations to the Convention; preventing the ECtHR from attributing responsibility for ECHR violations between the EU and its members; ensuring that only EU institutions determine whether the CJEU has already ruled on an issue; stipulating that the CJEU should be allowed to rule on the interpretation, not just the validity, of EU law during the “prior involvement” procedure; and limiting the ECtHR’s role in ruling on EU foreign policy issues.
Renegotiating any such changes to the accession agreement will involve all 47 ECHR signatories. The amended agreement would then require ratification by all these states, unanimous approval by the EU Council, and ratification by the European Parliament.
Predicting the difficulty of such a renegotiation is challenging. Achieving the compromise in the current treaty was already a complex endeavor, and it’s doubtful that the EU’s demand for ten further non-negotiable amendments will be well-received.
Some of the Court’s objections might align with the initial intentions of the parties to the accession agreement, making it easier to incorporate corresponding amendments. However, some objections prioritize the primacy of EU Courts over the ECtHR or favor EU law over the substance of Convention rights. These amendments would be difficult to agree on and might even be seen as contradicting the fundamental nature of the ECHR.
If these amendments are inherently incompatible with the ECHR, further negotiation would be futile. Therefore, the Committee of Ministers should invoke Article 47 ECHR, requesting an advisory opinion from the ECtHR on interpreting the Convention or its protocols. While this might not explicitly cover the draft accession agreement, the agreement in its current form would amend the ECHR, and a revised agreement would likely do so even further. The ECtHR should have the opportunity to determine whether the CJEU’s proposed ECHR amendments violate the fundamental principles of the Convention system.
Could EU reservations to the ECHR address some of the Court’s objections? Article 57 ECHR permits reservations, provided they are not “general” in character. The ECtHR has previously invalidated reservations deemed too broad. Obtaining a prior ruling from the ECtHR (through the advisory procedure) on the validity of potential EU reservations would be beneficial. Reservations concerning CFSP or JHA matters might be deemed invalid due to their general nature.
What if this judgment hinders the EU accession process? It’s not an improbable scenario. EU law mandates the EU’s accession to the ECHR. The EU institutions can face legal action for “failure to act” on their legal obligations. Thus, the Commission is arguably obligated to request an amendment to its negotiation mandate, the Council to grant it, and the Member States to back the EU’s position (breaching the latter could lead to infringement proceedings).
However, legal obligations arising from EU Treaties cannot bind external parties. If the ECtHR or non-EU Member States refuse to continue accession negotiations based on the CJEU’s demands, the EU institutions and Member States cannot be held responsible.
The legal obligation to proceed with accession is distinct from the question of whether the process should continue based on the CJEU opinion, a point addressed in the critique of the Court’s reasoning.
Comments
The judgment presents two main categories of objections to ECHR accession: procedural and substantive. The former are generally less problematic than the latter.
The procedural objections mainly concern: Protocol 16 ECHR and the preliminary ruling process; inter-state dispute resolution; the co-respondent procedure; the prior involvement procedure; and CFSP matters. Seven of these eight points focus on preserving the CJEU’s authority over EU law, except for the CFSP point, as the CJEU largely lacks jurisdiction in this area.
In principle, this first group of seven objections is not problematic from a substantive human rights protection standpoint. The CJEU’s desire to keep EU law issues within its jurisdiction (where it exists) is understandable, leaving the ECtHR to focus on ECHR interpretation. However, separating the two in practice, particularly regarding liability for Convention breaches and the admissibility of procedures outlined in the draft agreement, will be challenging.
However, this is minor compared to the Court’s objections concerning CFSP and the essence of the ECHR. The CFSP objection is baffling. Human rights violations occur in foreign policy actions, ranging from right-to-life violations to arbitrary detention and human trafficking by foreign forces. The CJEU, lacking jurisdiction over most CFSP matters, dictates that the ECtHR also cannot possess judicial review powers. (Note: This suggests that Member States bringing CFSP disputes to the International Court of Justice would also breach EU law.)
This goes beyond merely delineating which court interprets EU law. The CJEU’s stance is essentially that if it cannot have jurisdiction over CFSP, then no other international court can either. In essence, it appears to be prioritizing its own power over the need for any form of external accountability. This could have dire consequences, leaving victims of serious human rights abuses without effective remedies at the international level.
This leads to the two substantive points: ensuring Member States don’t set higher standards within EU law and protecting the mutual trust principle in JHA matters. On the first point, the Court extends its long-standing principle that EU law’s primacy prevents Member States from having higher human rights standards when EU law fully harmonizes the relevant areas to include the ECHR. While this might seem consistent from an EU law perspective, it is concerning from an international human rights law perspective, as it undermines a central principle of human rights treaties.
The Court’s ruling on this point would be less problematic were it not for its stance on mutual trust in JHA matters. If resisting removal to another Member State or the execution of a European Arrest Warrant based on human rights grounds were possible, many individual rights violations could be prevented. However, the Court strongly reaffirms its established presumption that the EU’s JHA system rests on the principle of mutual trust, which can only be disregarded in exceptional cases.
The Court, therefore, asserts that its interpretation of the EU JHA system takes precedence over human rights protection as defined by the ECtHR. The underlying message of both substantive points is clear: the ECHR must conform to the CJEU’s interpretation of EU law, not the other way around.
Is this fundamentally justifiable? It is striking that the EU’s “values,” which are a condition for EU membership and can lead to suspending a Member State in serious cases, include human rights and related principles. There is no mention of EU law’s primacy, mutual trust in JHA matters, or preventing any international court from having jurisdiction over CFSP matters. In fact, today’s judgment demonstrates disregard for the “rule of law,” another core value mentioned in Article 2 TEU, particularly concerning CFSP. Regarding JHA, the Treaty drafters stipulated in Article 67(1) TFEU that the EU must “constitute an area of freedom, security and justice with respect for fundamental rights.” The Treaty does not prioritize mutual trust over human rights—quite the opposite.
This leads to a final consideration. While the EU remains legally obligated to join the ECHR and must take steps in that direction, is advocating for EU accession to the Convention still worthwhile as a matter of principle?
Frankly, EU accession under the terms set out by the CJEU holds appeal only for those who don’t prioritize human rights. In many ways, the Court’s judgment is a more refined and EU-specific version of the UK Justice Minister’s recent document, which sought legal changes to allow the UK to act as it pleases regarding human rights while remaining an ECHR signatory in name only. Of course, those who dislike the ECHR often dislike the EU, making this a narrow political base for moving forward.
Today’s judgment is a complete disaster for human rights advocates. Many have long supported EU accession to the ECHR to ensure effective external oversight of human rights failings by the EU and its Member States. The CJEU’s judgment, however, has removed this crucial reason for support.
Instead of strengthening human rights protection within the EU legal order, the EU’s accession on the CJEU’s terms would weaken it. The EU would be compelled to shield itself from numerous potential human rights claims.
Therefore, for the sake of those trafficked by EU-coordinated forces, those facing miscarriages of justice under the European Arrest Warrant, those pushed back from EU borders, those suffering in immigration detention centers, those starving on the streets due to lack of support, and those drowning desperately seeking refuge in Europe, there is a moral obligation to oppose the EU’s accession to the ECHR.
Barnard & Peers: chapter 9