Opinion 2/13 On Eu Accession To The Echr: Looking For The Silvery Lining
November 27, 2018
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Catherine Barnard, Trinity College, Cambridge
Introduction
Baca Juga
Opinion 2/13 is a judgment for lawyers, non politicians, albeit 1 amongst major political ramifications. It engages inward a detailed legal analysis of the relevant provisions of the Draft Accession Agreement (DAA), equally good equally key principles of European Union law. This does non e'er larn far an slow read. Others get got helpfully explained the Opinion (see the Editorial comments inward (2015) 52 Common Market Law Review 1); a number get got been get got been highly critical of it (eg President’s remarks on the opening of the judicial year), judicial comity volition Pb the judiciary inward both Courts to engage – in all probability privately – amongst each other.
Conclusions
A number of commentators get got been tremendously critical of the Court’s decision. Their disappointment is understandable. There was together with so much promise associated amongst accession. The number of Opinion 2/13 is to stymie these hopes. One reading of the Opinion is that the Court did this to deliver a trunk blow to the ECtHR together with to (re)assert the CJEU’s ain supremacy. In this representative the judgment is really much a political 1 dressed upward inward lawyers’ clothing. Another reading is that the Court was focused on (re)asserting the specific features of European Union law, which it felt had non been adequately recognised inward the negotiation process. In this representative the judgment is really much a legal one.
But in that location may endure a silver-lining. The Court of Justice has pose downwards a marking that it thinks that it tin dismiss ‘do’ human rights. It may directly get got to essay this. There may endure to a greater extent than decisions similar Abdida,[13] delivered yesteryear the Grand Chamber on the same twenty-four hours equally Opinion 2/13 (discussed yesteryear Peers, Lock). I desire to run across whether it is possible to adopt a to a greater extent than positive reading of the Opinion. My remarks focus on 3 points:
· Was in that location a failure to run across the woods for the trees inward the negotiations?
· Was Opinion 2/13 genuinely a representative of judicial vanity?
· What are the effects of Opinion 2/13 on relations betwixt the CJEU together with the European Court of Human Rights?
Was in that location a failure to run across the woods for the trees inward the negotiations?
The submissions of the Member States together with the AG’s Opinion focused on the content of the Draft Accession Agreement: are the diverse clauses of the understanding compatible amongst European Union law? But I recall the Court felt that the focus on the nuts together with bolts of the DAA meant that the negotiators failed to await at the bigger picture, namely (1) that the European Union is non a state; together with (2) that European Union police has special characteristics (the linguistic communication of Article 1 of Protocol 8[1]) which had non been sufficiently accommodated yesteryear the DAA.
In other words, the DAA focused on the solid soil of the soft furnishings of the problem solid – the carpets together with curtains - rather than on the structural soundness of the entire edifice. But the Court was much to a greater extent than concerned amongst the edifice rather than the soft furnishings. This is why it devoted a substantial role of its Opinion (paragraphs 153-177) to identifying the ‘specific characteristics’ of European Union police which it thought risked beingness undermined yesteryear accession to the ECHR. It identified these specific characteristics equally supremacy, direct effect, conferral of powers, institutional structure[2], equally good equally the regulation of usual trust[3] and fundamental rights (why together with so far downwards the list?).[4] The Court also emphasised the importance of the autonomy of European Union police - that is its autonomy from both the laws of the Member States together with international law.[5] The Court said that the autonomy of European Union law, together amongst its specific characteristics, were preserved yesteryear the judicial scheme intended to ensure consistency together with uniformity inward the interpretation of European Union law.[6] And the key to this scheme is the Article 267 TFEU preliminary reference procedure.[7] It was against this backcloth, said the Court, that the DAA had to endure considered.
Having gear upward out its stall, the Court was, I think, trying to signal that anything inward – or nearly - the Accession understanding which jeopardised this marrow contravened European Union law. Putting it exactly about other way, the give-and-take inward paragraphs 153-177 was non pose in that location exactly to learn European Union lawyers to suck European Union eggs; these paragraphs are integral to the logic that followed. They provided the context for the Court to consider non exactly the points raised yesteryear the Member States inward their submissions but also the bigger constitutional picture.
This broader constitutional context also helps to explicate the focus on the 3 noun issues: Article 53, usual trust together with Protocol No. xvi which had featured piddling inward the submissions together with the AG’s Opinion. At commencement sight, it is peculiarly surprising that Protocol No. xvi was considered at all. It allows national courts of terminal resort of states signed upward to the Protocol to brand ‘references’ to the European Court of Human Rights for an interpretation of the Convention.[8] It was concluded afterward the DAA had been agreed together with it has non yet been brought into force. Yet the mere existence of Protocol xvi gave the Court the chance to limited its views on the centrality of Article 267 TFEU to the European Union scheme together with how the reference physical care for mightiness endure undermined.
In other words, for the Court, the EU’s squad negotiating the DAA had failed to consider this of import constitutional ‘wood’, focusing equally good much on the ‘trees’. Addressing the concerns nearly the potential infringement of Article 267 TFEU, together amongst the issues raised nearly Article 53 TFEU, the regulation of usual trust together with Protocol No 16, was essential earlier accession could get got place.
Was Opinion 2/13 a representative of judicial vanity?
Critics of Opinion 2/13 fence that the Court of Justice was determined to protect its supremacy at all costs. Despite the fact that all intervening Member States, the AG (with reservations), together with the Presidents’ articulation communication indicated back upward for the DAA, the Court cussedly did the opposite. Even if this narrative is right (which I incertitude - run across below), I genuinely recall in that location would endure exactly about justification for the Court refusing to give upward itself together with so absolutely to the command of a ‘higher’ court. Compared to the States of America Supreme Court, it is withal a teenager equally a court. It continues to bargain amongst threats to its supremacy from the Constitutional Courts of the Member States. It has, to a greater extent than or less, successfully held off those challenges. It surely saw off a challenge to its supremacy from the ability of the United Nations inward Kadi I.[9] There, its identification of the autonomy of European Union police was largely welcomed: David was seeing off Goliath. The province of affairs is dissimilar now. The CJEU has directly assumed Goliath-like proportions. Autonomy may directly endure false for hubris, arrogance, disdain for its sis court. However, to the Court of Justice, subordination to a ‘higher’ courtroom mightiness advise the Court is non invincible. It has e'er been really sensitive to this possibility.
However, I am non sure that the narrative of judicial vanity is correct. After all the Court does expressly concede that European Union police - together with the Court of Justice - are subjecting themselves to external review.[10] It points out that:
It is admittedly inherent inward the really concept of external command that, on the 1 hand, the interpretation of the ECHR provided yesteryear the ECtHR would, nether international law, endure binding on the European Union together with its institutions, including the Court of Justice, together with that, on the other, the interpretation yesteryear the Court of Justice of a right recognised yesteryear the ECHR would non endure binding on the command mechanisms provided for yesteryear the ECHR, peculiarly the ECtHR, equally Article 3(6) of the draft understanding provides together with equally is stated inward paragraph 68 of the draft explanatory report.
The Court also recognises that in that location is an obligation on the European Union to accede to the Convention. However, I recall the construction of paragraphs 160-162 is telling. The emphasis is non on the obligation to accede nether Article 6(2) TEU, commencement sentence. Rather, the Court emphasises that accession is dependent area to limitations: accession must ‘not acquit upon the Union’s competences equally defined inward the Treaties’ (Article 6(2) TEU, instant sentence), nor must it interfere amongst the specific characteristics of the European Union (Protocol 8, protocols beingness of equal value to the Treaties). As the Court pose it at paragraph 164:
For the purposes of that review, it must endure noted that, equally is apparent from paragraphs 160 to 162 above, the atmospheric condition to which accession is dependent area nether the Treaties are intended, particularly, to ensure that accession does non acquit upon the specific characteristics of the European Union together with European Union law.
This is a subtle alter inward emphasis but an of import one. Yes, Article 6(2), commencement sentence, suggests an absolute obligation to accede. However, when viewed through the lens of Protocol 8 together with the instant judgement of Article 6(2) TEU, the Treaty provided non an absolute obligation to accede but a conditional one.[11] I recall this is the delineate the Court took.
What are the effects of the Opinion on relations amongst the ECtHR?
For proponents of the thesis of CJEU vanity, the number of the Opinion on relations amongst the ECtHR is disastrous. The fact that the Opinion came out exactly earlier Christmas – non a bad fourth dimension to bury bad intelligence – mightiness back upward the thought that the Court of Justice had something to hide.
Again, a closer await at the judgment mightiness refute, at to the lowest degree inward part, this allegation. First, at no dot did the Court criticise the European Court of Human Rights or its representative law; its ire seems to get got been directed at the EU’s negotiating team.
Second, equally Peers has helpfully digested, the Court has clearly identified areas for improvement. It has hence provided a drafting ‘shopping list’ for the EU’s (new?) negotiating team. Some of these items are relatively straightforward to address. Some, especially those concerning the CFSP, usual trust,[12] Article 53 together with Protocol 16, may non be. And the logistics of renegotiating the DAA inward the confront of a number of intransigent states both inward the European Union together with outside, gives considerable intermission for thought.
But the fact is that the Court of Justice did non unopen the door on European Union accession to the ECHR. Leaving it ajar, yes, but non slamming the door unopen completely. And the Court of Human Rights is a sensitive institution. While its commencement reaction mightiness endure disappointment (see the President’s remarks on the opening of the judicial year), judicial comity volition Pb the judiciary inward both Courts to engage – in all probability privately – amongst each other.
Conclusions
A number of commentators get got been tremendously critical of the Court’s decision. Their disappointment is understandable. There was together with so much promise associated amongst accession. The number of Opinion 2/13 is to stymie these hopes. One reading of the Opinion is that the Court did this to deliver a trunk blow to the ECtHR together with to (re)assert the CJEU’s ain supremacy. In this representative the judgment is really much a political 1 dressed upward inward lawyers’ clothing. Another reading is that the Court was focused on (re)asserting the specific features of European Union law, which it felt had non been adequately recognised inward the negotiation process. In this representative the judgment is really much a legal one.
But in that location may endure a silver-lining. The Court of Justice has pose downwards a marking that it thinks that it tin dismiss ‘do’ human rights. It may directly get got to essay this. There may endure to a greater extent than decisions similar Abdida,[13] delivered yesteryear the Grand Chamber on the same twenty-four hours equally Opinion 2/13 (discussed yesteryear Peers), where the Court adopts a pro-human rights delineate (sweetened yesteryear numerous references to the representative police of the European Court of Human Rights). Politically this may endure really important, non solely to start the physical care for of couple edifice amongst the Court of Human Rights, but also to post out a message to its ain (troublesome) constitutional courts. For what is sauce to the (CJEU) goose is also sauce for the gander of the national constitutional courts.
These remarks were commencement delivered to a seminar organised yesteryear CELS, Faculty of Law, University of Cambridge, 4 Feb 2015.
Barnard & Peers: chapter 9
[1] ‘The understanding relating to the accession of the Union to the European Convention on the Protection of Human Rights together with Fundamental Freedoms (hereinafter referred to equally the "European Convention") provided for inward Article 6(2) of the Treaty on European Union shall brand provision for preserving the specific characteristics of the Union together with Union law, inward particular amongst regard to: (a) the specific arrangements for the Union's possible participation inward the command bodies of the European Convention;(b) the mechanisms necessary to ensure that proceedings yesteryear non-Member States together with private applications are correctly addressed to Member States and/or the Union equally appropriate.’
[2] Paras. 165-6.
[3] Para. 168. See also K. Lenaerts, ‘The Principle of Mutual Recognition inward the Area of Freedom, Security together with Justice’, The Fourth Annual Sir Jeremy Lever Lecture, All Souls College Oxford, xxx Jan. 2015.
[4] Para. 169.
[5] Para. 170.
[6] Para. 174.
[7] Para. 176. See also Opinion 1/09, ECLI:EU:C:2011:123.
[8] Art. 1 says ‘Highest courts together with tribunals of a High Contracting Party, equally specified inward accordance amongst Article 10, may asking the Court to give advisory opinions on questions of regulation relating to the interpretation or application of the rights together with freedoms defined inward the Convention or the protocols thereto.’
[9] Kadi together with Al Barakaat International Foundation v Council together with Commission, C‑402/05 P together with C‑415/05 P, EU:C:2008:461.
[10] Para. 182-5.
[11] For hints of that view, run across Discussion document of the Court of Justice of the European Union on sure aspects of the accession of the European Union to the European Convention for the protection of Human Rights together with Fundamental freedoms, May 2010, paras. 4-5
[12] See farther A. Kornezow, ‘The Area of Freedom, Security together with Justice inward the Light of the European Union Accession to the ECHR—Is the Break-up Inevitable?’ (2012-13) 12 CYELS 227.
[13] Case C-562/13 ECLI:EU:C:2014:2453.
