Originally published in Issue 1 of the Human Right Lawyers’ Association’s Young Human Rights Lawyer as ‘The European Union’s Accession to the ECHR – Two Steps Forward, One Step Back’ (2005) 1 YHRL 23-28. Download a copy of the journal online here. Deadline for submissions for Issue 2 is 15 February 2016 – get yours in now!
Now whether it be
Bestial oblivion, or some craven scruple
Of thinking too precisely on th’ event—
A thought which, quarter’d, hath but one part wisdom
And ever three parts coward—I do not know
(Hamlet, Act IV, scene 4, 39-43)
The process towards the European Union’s (EU) accession to the European Convention of Human Rights (ECHR) has been something of a roller-coaster ride over 35 years. Two major steps forward were: the entry into force of the Lisbon Treaty in 2009 with Article 6(2) TEU, and the conclusion of the Draft Agreement on Accession of the European Union to the European Convention on Human Rights in 2013.
On 18 December 2014, the Court of Justice of the European Union (CJEU) finally handed down its Opinion 2/13, rejecting accession on the terms of the Draft Agreement. It is regrettable that the CJEU has taken us a step back, and one gets the impression that the refusal to give the green lights is one part wisdom, and three parts reluctance to subject itself to the European Court of Human Rights (ECtHR). It is this author’s submission that a general reluctance to be subject to the ECtHR is unjustifiable, and the reasoning in the Opinion is unconvincing. The way forward is to seek clarifications on ambiguities and to accept Strasbourg’s confined scrutiny.
The legitimacy of ECtHR scrutiny
Human rights protection depends on the rule of law and independent judicial scrutiny. As Judge Spano observed extrajudicially, ‘the whole point of judicial review, whether national or international, is to provide a check on democratic decision-making as it may, disproportionately, restrict individual human rights’. The primary review is certainly domestic, but the failures of domestic courts to stop human rights abuses during World War II precipitates the deficiency of domestic judicial protection. Thus, an added level of supranational protection is necessary with a ‘collective guarantee’ of human rights, for ‘the protection of human rights is not purely a matter of domestic concern’. The legitimacy of supranational human rights scrutiny applies mutatis mutandis to EU institutions. There is no a priori justification for the EU to be exempt. Indeed, given the wide-ranging impact of EU law, there should a fortiori be heightened scrutiny.
The legal lacuna in human rights protection is well-rehearsed, and the Kokkelvisserij case is paradigmatic of the lack of an effective remedy for violations by the EU. Member States, too, are placed in a dilemma when they are held responsible for infringements mandated by EU provisions or procedures, as in Matthews and Connolly. This is coupled with the CJEU’s restrictive interpretation of ECHR rights as compared to Strasbourg’s approach – the supposed ‘floor of protection’.
In the end, the EU itself is a supranational body ‘founded on the values of… the rule of law and respect for human rights’ under Article 2 TEU, and the EU’s Charter of Fundamental Rights (with equal status as the Treaties under Article 6(1) TEU) itself rests on the legitimacy of supranational human rights scrutiny. The EU cannot justify its rejection of supranational oversight without at the same time undermining its own foundations.
Compatibility of the Draft Agreement with the EU Treaties
The recurring theme in the Opinion is that accession undermines the autonomy of the EU legal order and the CJEU’s role as the arbiter of EU law. It is this author’s submission that none of the CJEU’s arguments, whether taken individually or collectively, are convincing.
(i) Primacy of EU law
The CJEU begins by asserting that the specific characteristics of EU law have been neglected. This is premised on the fact that the ECHR ‘would form an integral part of EU law’, with the consequence that the EU institutions including the CJEU would be bound by all ECtHR decisions. However, accession does not entail the integration of the ECHR and EU legal orders, as the EU is only permitting limited human rights scrutiny, not wholesale amalgamation. The CJEU is not strictly bound by decisions of the ECtHR, just as the UK need only take into account ECtHR decisions, and it is certainly not bound by decisions not addressed to the EU.
The Opinion specifically denounces the adoption by Member States of higher human rights standards as threatening the primacy and unity of EU law. This is questionable because Article 53 of the Charter intends to ‘maintain the level of protection currently afforded within their respective scope by… national law’, and the aim of human rights instruments is to maximise, not minimise, protection. As Sir Nicholas Bratza opined, it is ‘right and positive for the protection of human rights that the national courts… should sometimes consciously leap ahead of Strasbourg’. This maintains a meaningful dialogue with Strasbourg.
The CJEU carried this argument further, relying on the principle of mutual trust between Member States. With respect, this essentially precludes any external human rights scrutiny and presumes the EU is infallible. It empties accession of all its purpose and value. As Steve Peers remarked, ‘from the perspective of international human rights law, it’s shocking’. Moreover, the CJEU has misrepresented the purpose of accession – it is not to allow Member States to challenge the validity of EU law, but only to allow ‘any person’ to complain to Strasbourg about an EU measure.
(ii) CJEU as arbiter of EU law
The Opinion is at pains to stress that the CJEU is the sole arbiter of EU law under Article 344 TFEU, arguing that the preliminary ruling procedure and the CJEU’s autonomy would be undermined by the possibility of an ECtHR advisory opinion under Protocol 16 ECHR, the allocation of responsibility under the co-respondent mechanism, and the limitation of the prior involvement process to the assessment of validity of EU legislation.
These arguments reflect anxieties over the necessary inconvenience of external scrutiny. First, as emphasised in paragraph 66 of the Draft Explanatory Report to the Draft Agreement, the CJEU would very rarely be bypassed – guidance can be given to national courts on preliminary references. Secondly, the prior involvement process is precisely intended to remedy this anomaly, and this can easily be extended to requests for the ECtHR’s advisory opinion. While it is accepted that the CJEU should be able to rule on the proper interpretation and scope of EU legislation, this can be achieved by rephrasing paragraph 65 of the Draft Explanatory Report.
The concerns over the allocation of responsibility are similarly misguided. The co-respondent mechanism is, as paragraph 62 of the Draft Explanatory Report states, intended to avoid gaps and allow joint responsibility, and the test is whether a provision of EU law is called into question. It normally remains open for the EU to allocate responsibility for remedying a breach to Member States, with follow-up enforcement actions under Article 258 TFEU.
The CJEU’s intransigence effectively excludes any analysis of the requirements of EU law in the process of assessing compatibility with the ECHR. A fine distinction between interpretation of the ECHR and interpretation of EU law is ‘impossible to observe in practice’, effectively rendering all external scrutiny incompatible with EU law.
(iii) Competence creep
Perhaps the most unsettling aspect of the Opinion is the CJEU’s argument that the EU’s competences would be illegitimately extended, due to the effect on reservations by Member States and the CJEU’s own lack of jurisdiction over CFSP matters. The first point is easier to dispense with – where a violation with an EU element is specifically attributed to a Member State, it would be able to rely on its reservation provided that it is not of a general character, whereas if the EU is responsible for taking steps to rectify the measure, then the reservation is simply not relevant.
The CFSP issue is normatively problematic. Although Article 24(1) TEU excludes most CFSP matters from the CJEU’s jurisdiction, this cannot create a legal black hole. Moreover, the ECtHR’s jurisdiction is not conferred by the CJEU, but by the Member States’ consent to accession. This is consistent, as Steve Peers observed, with the provision for ‘an area of freedom, security and justice with respect for fundamental rights’ in Article 67(1) TFEU.
It is high time for the CJEU to acknowledge that there is no issue of subordination in accession. As Dr Hans Krüger emphasised, ‘[t]he Strasbourg Court is in no sense a higher court than, for instance, the House of Lords or Germany’s Constitutional Court. It is simply a “more specialised” court’ limited to assessing compliance with human rights, having due regard to subsidiarity as reiterated in the new Protocol 15 ECHR. One can only hope that upon realising this, the CJEU would no longer be concerned that accession would ‘displace the Court of Justice as the apex Court for the European Union’ and take the last step forward. As things currently stand, it is difficult to see how any accession agreement would ever pass the test. In truth, the EU is put to the test – how European is the European Union?
 See Memorandum on the Accession of the European Communities to the European Convention for the Protection of Human Rights and Fundamental Freedoms, 4 April 1979, Bulletin of the EC supp 2/79.
 See the Final Report to the CDDH, 10 June 2013, 47+1(2013)008.
 See Lord Bingham, The Rule of Law (Allen Lane 2009), Ch 9.
 Judge Robert Spano, ‘Universality or Diversity of Human Rights?’ (2014) 14 HRLR 487, 488.
 See George Letsas, ‘In Defense of the European Court of Human Rights’ <www.ucl.ac.uk/human-rights/news/documents/prisoners-vote.pdf> accessed 30 December 2014.
 Michael O’Boyle, ‘The Future of the European Court of Human Rights’ (2011) 12 German Law Journal 1862, 1867.
 See Judge Robert Spano, ‘The European Court of Human Rights: anti-democratic or guardian of fundamental values?’ (Speech at Chatham House, 13 October 2014) <http://ukhumanrightsblog.com/2014/11/19/the-european-court-of-human-rights-anti-democratic-or-guardian-of-fundamental-values-judge-robert-spano/> accessed 30 December 2014.
 See eg David Hart QC, ‘EU judges oppose accession of EU to ECHR’ (UK Human Rights Blog, 22 December 2014) <http://ukhumanrightsblog.com/2014/12/22/eu-judges-oppose-accession-of-eu-to-echr/> accessed 30 December 2014; also Aidan O’Neill QC, ‘Opinion 2/13 on EU Accession to the ECHR: The CJEU as Humpty Dumpty’ (Eutopia Law, 18 December 2014) <http://eutopialaw.com/2014/12/18/opinion-213-on-eu-accession-to-the-echr-the-cjeu-as-humpty-dumpty/> accessed 30 December 2014.
 Cooperatieve Producentenorganisatie van de Nederlandse Kokkelvisserij UA v Netherlands, app no 13645/05, 20 January 2009.
 Matthews v United Kingdom, app no 24833/94, 18 February 1999 (electoral regulations based on EU law).
 Connolly v 15 Member States of the EU, app no 73274/01, 9 December 2008 (CJEU proceedings non-compliant).
 For instance, cf Case 159/90 The Society for the Protection of Unborn Children Ireland v Grogan  ECR I-4685 and Open Door and Dublin Well Woman v Ireland, app nos 14234/88; 14235/88, 29 October 1992.
 See Article 52(3) of the Charter on Fundamental Rights.
 Opinion 2/13 -.
 See Hans Krüger, ‘Accession of the European Union to the European Convention on Human Rights’ (Sir Thomas More Lecture 2004, Wildy, Simmonds & Hill Publishing 2008) pp 20-21.
 Article 46 ECHR.
 Opinion 2/13 .
 Explanations relating to the Charter of Fundamental Rights  OJ C 303/17, 35.
 Nicholas Bratza, ‘Opinion: The relationship between the UK courts and Strasbourg’  EHRR 505, 512.
 Ambrose v Harris  UKSC 43  (Lord Kerr).
 Opinion 2/13 -.
 See Steve Peers, ‘The CJEU and the EU’s accession to the ECHR: a clear and present danger to human rights protection’ (EU Law Analysis, 18 December 2014) <http://eulawanalysis.blogspot.co.uk/2014/12/the-cjeu-and-eus-accession-to-echr.html> accessed 30 December 2014.
 See the Preamble to the Draft Agreement (n 4).
 Opinion 2/13 , , , , .
 See Hart (n 9).
 Opinion 2/13 -, .
 See Peers (n 25).
 Krüger (n 15) p21.
 See O’Neill (n 8).