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The European Commission has declared the need for a period of reflection after Opinion 2/13 of the European Court of Justice has stopped the European Union from signing up to the European Convention on Human Rights (ECHR). Mindful of its legal duty under Article 6(2) TEU to achieve the EU’s accession to the Convention, the Commission considers itself still empowered by the Council decision of June 2010 to continue negotiations in due course with the Council of Europe. But the political reaction is muted: some EU member states would like to knock the matter into the long grass; and the European Parliament has not yet found its voice. In truth, nobody can relish the thought of re-opening negotiations at this juncture on the Draft Accession Agreement with either Russia or Turkey, both of whose leaders appear to have abandoned the democratic rule of law and turned against Western values.

Yet the Court of Justice (CJEU) raises important issues which the other institutions cannot simply ignore. Its Opinion adds to the already fairly improbable conditions which the Treaties themselves (especially Protocol No 8) attach to the EU’s accession to the ECHR. As in other instances of EU primary law, when it comes to prescribing how the EU should deal with human and fundamental rights, the Treaties are more prohibitive than permissive. What they give with one hand, they take away with the other.

Article 53 of the Charter of Fundamental Rights – mandatory since Lisbon – allows the Union to offer more extensive protection than the Convention, but in the Melloni case, for example, the CJEU has been anxious to insist that after accession to the ECHR the EU member states (all of whom, of course, also signatories to the Convention) should not seek to outpace or undermine the ‘primacy, unity and effectiveness’ of Union law. That judgment sets the tone. The Court of Justice is apprehensive both about undue intrusion into EU law by the Strasbourg European Court of Human Rights and about free-wheeling by the high courts of the member states.

The President of the Strasbourg Court, Dean Spielmann, has intimated that failure to complete the accession could lead his court to be less well disposed towards its Luxembourg colleagues. The famous Bosphorus case, now ten years old, is subject to dynamic interpretation. The original presumption that the EU’s treatment of human rights will always be equivalent to that of the ECHR should not be taken for granted.

So while it goes reflecting, the Commission would do well to remind everyone of the original purpose of accession to the Convention, which is to permit the European Union to develop superior rights jurisprudence of a constitutional type. Closing the circle between the Convention and Charter systems should allow the EU to achieve the best global standard in rights protection and remedial action. That is the name of the game.

The need for internal rules

One of the odd things about this story so far is that the EU has yet to agree its internal rules for managing affairs after accession. Much rests on the quality and clarity of these internal rules, in particular about the role of the European Commission in the Council of Europe’s Committee of Ministers. Both the European Parliament, which has to give its consent to the terms of the accession (under Article 218(6) TFEU), and the CJEU, which will surely have to be asked for a second binding Opinion on a revised package deal (Article 218(11)), would be enlightened by the publication of agreed internal rules.

Could the internal rules help to settle the matter of the ECHR’s new Protocol 16? This Protocol would allow its signatory states to refer to the ECtHR for advice on the interpretation of the Convention. Two states (San Marino and Slovenia) have already ratified the Protocol: only eight more ratifications are needed before the Protocol comes into force. Understandably, the CJEU is worried that this avenue will be used by errant EU states to second-guess its own due process of preliminary rulings under Article 267 TFEU. A good internal EU rule could discipline member states in their use of Protocol 16.

Another internal rule could pre-empt as far as possible interference by the ECtHR from choosing co-respondents in a case brought before it by a non-EU state or another entity on a matter leaning on EU law. It can be well understood that the CJEU, while accepting the ECtHR as its external supervisor, should wish to prevent its own subordination to the ECtHR. The general rule should be established that EU states go in the first instance to Luxembourg about the Convention and should never go to Strasbourg about the Charter. In all circumstances, to maintain the autonomy of the EU’s legal order, the prior involvement of the CJEU should be guaranteed.

Advocate General Kokott, in her much more positive recommendation to the CJEU prior to its negative ruling, recommended that the EU states make a self-denying ordinance against going to Strasbourg to settle their disputes, but instead stick to EU arbitration (as Article 344 TFEU requires). However, it will be worth examining the possibility of bolstering such a unilateral declaration and the new rules of procedure in the form of a regulation under Article 352 TFEU.

The inevitability of treaty change

Speaking in Cambridge this weekend, President Spielmann also accepted that the EU Treaties could be amended in order to lower the numerous hurdles that have to be jumped before accession to the ECHR can be realised.

One candidate for clarification is the doctrine of ‘mutual trust’ which the CJEU insists prevails and must prevail between member states on the matter of rights. Such a rigid doctrinal approach seems increasingly out of kilter with political reality, especially on asylum and immigration issues where there is plenty of evidence of systemic deficiencies in many member states.

Nevertheless, the growing constitutional interdependence of EU states is apparent in several fields. This mutual reliance deserves to be underpinned in the EU treaty with a new clause that obliges the EU states, especially when they change their domestic constitutions, to respect the norms of the European Union. Such a provision would fall naturally within Article 4 TEU where the EU is already obliged to respect the domestic constitutions of its states: that compliment now needs to be returned. Other treaty enhancements could be made to make the concept of EU citizenship more real and to reinforce freedom of movement.

Lastly, there is the enormous difficulty presented by the fact that Articles 24(1) TEU and 275 TFEU severely restrict the powers of the CJEU to oversee the common foreign and security policy of the Union. The CJEU quite understandably warns of the risk that after accession the ECtHR would be able to trump EU law in this area while only member states and not the CJEU itself would be able to intervene at Strasbourg. Such a lacuna in the current EU Treaties matters very much because breaches of human and fundamental rights are likely to emerge precisely in the context of the external activities of the EU, including common security and defence policy missions, as well as over the EU’s dealings with third country nationals.

Nobody can be complacent about the opening up of a gap between the human rights regime of the Council of Europe and the fundamental rights regime of the European Union. A fall-out between the ECtHR at Strasbourg and the CJEU at Luxembourg is a bad thing for European rights protection. The Opinion also challenges certain assumptions on which the recent constitutional evolution of
the Union has taken place. One recalls very clearly how the decision to accede to the ECHR became the quid pro quo for making the Charter binding: failure to complete the process will inevitably weaken the force of the Charter. It will be very difficult to renegotiate the Draft Accession Agreement. Maybe it’s time for the politicians to come to rescue the lawyers.
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An earlier and longer version of this blog appears on Verfassungsblog.

Andrew Duff’s new book is Pandora, Penelope, Polity: How to Change the European Union is now out.

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