Accession of the European Union to the European Convention on Human Rights

JurisdictionEuropean Union
JudgeMalenkovsky,Kokott,Toader,Bonichot,Berger,Biltgen,von Danwitz,da Cruz Vilaça,Borg Barthet,Vajda,Šváby,Prechal,Tizzano,Bay Larsen,Fernlund,Silva de Lapuerta,Rodin,Jarašiunas,Skouris,Lenaerts,Levits,Ó Caoimh,Safjan,Arabadjiev,Ilešič
CourtCourt of Justice of the European Union
Date18 December 2014

European Union, Court of Justice.

(Skouris, President; Lenaerts, Vice-President;Tizzano, Rapporteur, Silva de Lapuerta, Ilešič, Bay Larsen, von Danwitz, Ó Caoimh, Bonichot, Vajda and Rodin, Presidents of Chambers; Juháhsz, Borg Barthet, Malenkovsky, Levits, Arabadjiev, Toader, Safjan, Šváby, Berger, Prechal, Jarašiunas, Fernlund, da Cruz Vilaça and Biltgen, Judges;Kokott, Advocate General)

Opinion 2/13

(Accession of the European Union to the European Convention on Human Rights)1

Human rights — Treaties — European Convention on Human Rights — Participation — European Union — Draft agreement for accession of European Union to European Convention on Human Rights — Whether compatible with European Union law — Autonomy of European Union legal order — European Union not to be equated to a State

International organizations — Personality — Responsibility — Division of functions between organization and members — European Union — Accession to the European Convention on Human Rights — Attribution of acts to Member States or the Union — Question of European Union law — Autonomy of European Union legal order

International tribunals — Court of Justice of the European Union — European Court of Human Rights — Proposed accession of European Union to European Convention on Human Rights — Degree to which judgments of the European Court of Human Rights to bind European Union and its institutions — Procedure — Co-respondent procedure — Mechanism for prior involvement of Court of Justice of the European Union

States — Characteristics — European Union — European Union not a State — Proposed participation in the European Convention on Human Rights

Summary: The facts:—The twenty-eight Member States of the European Union (‘the EU’), formerly the European Community (‘the Community’), were all parties to the European Convention on Human Rights and Fundamental Freedoms (‘the ECHR’), together with nineteen other States. Since some of the matters addressed by the ECHR fell within the competence of the EU, the possibility of the EU itself becoming party to the ECHR had been under consideration for some time. In 1996 the Court of Justice had concluded that, as Community law then stood, the Community had no competence to accede to the EU.2 The Treaty of Lisbon, which entered into force on 1 December 2009, amended Article 6 of the Treaty on the European Union (‘the TEU’)3 so as to provide that the fundamental rights guaranteed by the ECHR constituted general principles of EU law and that the EU was to accede to the ECHR. However, Protocol No 8 to the TEU4 provided that the accession agreement had to fulfil certain conditions so as, in particular, to

make provision for preserving the specific characteristics of the EU and EU law and to ensure that the accession of the EU to the ECHR did not affect the competences of the EU or the powers of its institutions.

On 4 June 2010, the EU Council of Ministers adopted a Decision authorizing the opening of negotiations for an accession agreement. On 5 April 2013, those negotiations resulted in the conclusion of a draft agreement. The EU Commission asked the Court to give its Opinion on the compatibility of the draft agreement with EU law, pursuant to Article 218(11) of the Treaty on the Functioning of the European Union (‘the TFEU’).

Held:—The draft agreement on the accession of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms was not compatible with Article 6(2) TEU or with Protocol No 8.

(1) The request for an Opinion was admissible. The Court had before it sufficient information regarding the draft agreement to enable it to assess the compatibility of the draft with the Treaties (Opinion of the Court, paras. 144–52).

(2) Unlike the position when Opinion 2/94 was adopted, there was now a specific basis in EU law for the EU to accede to the ECHR. Moreover, to enable accession to take place, the ECHR had itself been amended to make accession operational within the system established by the ECHR. Such amendments were necessary because the EU was, under international law, precluded by its very nature from being considered as a State. The fact that the EU had a new kind of legal order, its own constitution and founding principles had consequences regarding the procedure for, and conditions of, accession to the ECHR. Part of that legal order was the obligation of respect for fundamental rights, but the interpretation and application of those rights had to be in accordance with the constitutional framework of the EU (Opinion of the Court, paras. 153–77).

(3) The accession of the EU to the ECHR as envisaged by the draft agreement was liable adversely to affect the specific characteristics of EU law and its autonomy.

(a) If the EU acceded to the ECHR, like any other Contracting Party it would be subject to external control to ensure the observance of the rights and freedoms under the ECHR which the EU would undertake to respect. That external control was not in principle incompatible with the EU legal order. While it was inherent in the very concept of external control that the interpretation of the ECHR by the European Court of Human Rights (‘the ECtHR’) would, under international law, be binding upon the EU and its institutions, it should not be possible for the ECtHR to call into question the findings of the Court of Justice regarding the scope ratione materiae of EU law, including the Charter of Fundamental Rights of the EU (‘the Charter’) (Opinion of the Court, paras. 179–86).

(b) Article 53 of the ECHR reserved the power of the Contracting Parties to lay down higher standards of protection than those guaranteed by the ECHR. The Court of Justice, however, had interpreted Article 53 of the Charter as meaning that the application of national standards of protection of fundamental rights should not compromise the level of protection provided by the Charter or the primacy, unity and effectiveness of EU law. There was no provision in the draft agreement for ensuring that Article 53 ECHR was similarly limited (Opinion of the Court, paras. 187–90).

(c) The principle of mutual trust between the Member States was of fundamental importance in EU law and required one Member State to presume that fundamental rights were being observed by another Member State. The principle of mutual trust could be undermined by the fact that the ECHR required each Contracting Party to check that another Contracting Party was complying with the Convention (Opinion of the Court, paras. 191–5).

(d) Protocol No 16 to the ECHR would permit the highest courts and tribunals of a Contracting Party to request advisory opinions from the ECtHR. That would create a risk of undermining the duty of such courts to refer to the Court of Justice for a ruling in accordance with Article 267 TFEU (Opinion of the Court, paras. 196–9).

(4) The draft agreement was liable to affect Article 344 TFEU, which required Member States not to submit a dispute concerning the interpretation or application of the Treaties to any mode of settlement other than those provided for in the Treaties. The ECHR provided for the possibility of one Contracting Party bringing proceedings before the ECtHR against another Contracting Party. Since a dispute between two Member States regarding the interpretation or application of the ECHR within the scope ratione materiae of EU law would be a dispute regarding the interpretation or application of EU law, it followed that there was a risk of undermining Article 344 unless the draft agreement contained an express exclusion precluding EU Member States from bringing such cases before the ECtHR (Opinion of the Court, paras. 201–14).

(5) The draft agreement proposed to introduce into the ECHR a ‘corespondent mechanism’ whereby the EU or a Member State could be added as a co-respondent to proceedings before the ECtHR to avoid gaps in accountability and to ensure that proceedings by non-Member States or individual applications to the ECtHR were correctly addressed to Member States and/or the EU as appropriate. However, as presently envisaged, the mechanism did not ensure that the specific characteristics of EU law were preserved, since it would require the ECtHR to assess rules of EU law concerning the division of powers between the EU and the Member States, thereby compromising the autonomy of the EU legal order (Opinion of the Court, paras. 215–35).

(6) The ‘prior involvement procedure’ designed to ensure that the Court of Justice could carry out an internal review before the ECtHR was called upon to carry out an external review was also incompatible with the autonomy of the EU legal order as presently envisaged, since it would allow the ECtHR to rule on certain issues of EU law (Opinion of the Court, paras. 236–48).

(7) The draft agreement did not limit the power of the ECtHR to rule on matters arising within the framework of the Common Foreign and Security Policy of the EU (‘the CFSP’), whereas the powers of the Court of Justice with regard to the CFSP were restricted by EU law. The result was that the judicial review of acts of EU institutions within the framework of the CFSP might be entrusted to a court outside the EU in circumstances where the EU's own court lacked jurisdiction (Opinion of the Court, paras. 249–57).

The text of the Opinion of the Court begins at p. 678. The following is the text of the View of Advocate General Kokott:1

VIEW OF ADVOCATE GENERAL KOKOTT
CONTENTS

page

I. Introduction

606

II. Progress of the Accession Process to Date

607

III. The Commission's Request for an Opinion of the Court

608

IV. Legal Framework

609

V. Admissibility of the Request for an Opinion

611

VI. Substantive Assessment

613

Preliminary remark

613

A. Maintaining the competences of the EU

615

1. No curtailment of the competences of the EU as a result of accession

616

2. No extension of the competences of the EU as a...

To continue reading

Request your trial
1 practice notes
  • EU-Canada Comprehensive Economic and Trade Agreement (CETA Opinion)
    • European Union
    • Court of Justice of the European Union
    • 3 April 2019
    ...the draft agreement regarding the EU's accession to the European Convention on Human Rights, 1950 that was the subject of Opinion 2/13 (161 ILR 600)9 because it granted the European Union the power to decide whether a dispute was, in light of the division of powers between itself and its Me......
1 cases
  • EU-Canada Comprehensive Economic and Trade Agreement (CETA Opinion)
    • European Union
    • Court of Justice of the European Union
    • 3 April 2019
    ...the draft agreement regarding the EU's accession to the European Convention on Human Rights, 1950 that was the subject of Opinion 2/13 (161 ILR 600)9 because it granted the European Union the power to decide whether a dispute was, in light of the division of powers between itself and its Me......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT