The Cjeu As Well As The Eu’S Accession To The Echr: A Clear As Well As Introduce Danger To Human Rights Protection

 

Steve Peers

At long last, the CJEU has today delivered its ruling regarding the EU’s accession to the European Convention on Human Rights (ECHR). It’s a complex judgment that raises many legal questions. For now, this postal service seeks to provide: a summary of the ruling; an assessment of the consequences of the ruling; too an initial critique of the Court’s reasoning. On the latter point, the Court’s ruling is fundamentally flawed. In short, the Court is seeking to protect the basic elements of European Union constabulary past times disregarding the fundamental values upon which the Union was founded.

Background

Back inwards 1996, inwards Opinion 2/94, the CJEU ruled that every bit European Community constabulary (as it so was) stood at that time, the EC could non accede to the ECHR. Only a Treaty amendment could overturn this judgment, too inwards 2009, the Treaty of Lisbon did precisely that, inserting a novel provision inwards the Treaties that required the European Union to accede to the ECHR (Article 6(2) TEU). That treaty also added a Protocol 8 to the Treaties, regulating aspects of the accession, every bit good every bit a Declaration requiring that accession to the ECHR must comply alongside the ‘specific characteristics’ of European Union law.

 

However, these novel Treaty provisions could non past times themselves brand the European Union a contracting political party to the ECHR. To obtain that outcome, it was necessary for the European Union to negotiate a specific accession treaty alongside the Council of Europe. After a long negotiation process, this accession treaty was agreed inwards regulation inwards 2013. Today’s ruling past times the CJEU concerns the compatibility of that treaty alongside European Union law.

 

Summary

At the outset, the CJEU ruled that the instance was admissible (paras 144-52), fifty-fifty though the internal rules which volition regulate the EU’s interest inwards the ECHR take maintain non yet been drafted. In fact, the CJEU said that these internal rules couldn’t live the subject-matter of the opinion, fifty-fifty if they had been drafted. The United Kingdom of Great Britain too Northern Ireland of Britain too Northern Republic of Ireland authorities had reportedly been really angry well-nigh the prospect of the CJEU considering these internal rules, so it should live satisfied on this issue.

 

Next, the Court made about preliminary points (paras 153-77), asserting for the start out fourth dimension expressly that the European Union is non a Blue Planet (para 156); too (in effect) that the European Union organisation is sui generis (para 158), ie inwards a shape past times itself, without using that exact Latin phrase. Those critics of the European Union who consider it to live a State, too those academics who dislike the sui generis concept, straightaway take maintain about words to eat.  The Court also asserted that it was of import to ensure the primacy too straight effect of European Union law, referring also to the EU’s goals of ‘ever closer union’.

 

The Court so ruled that the draft understanding was incompatible alongside European Union law, for 5 primary reasons. Firstly, it did non select concern human relationship of the specific characteristics of European Union constabulary (paras 179-200), inwards 3 respects.  It did non curtail the possibility of Member United States of America having higher human rights standards than European Union law, fifty-fifty though the CJEU had ruled (in the Melloni judgment of 2013) that Member United States of America could non take maintain higher standards than the European Union Charter of Rights, where the European Union has fully harmonised the law. The same dominion applies to the ECHR, inwards the Court’s view, too the draft understanding did non select concern human relationship of this. Similarly, the draft understanding did non furnish for the application of the dominion of ‘mutual trust’ inwards Justice too Home Affairs (JHA) matters, which agency that Member United States of America must presume that all other Member United States of America are ‘complying alongside European Union constabulary too especially alongside the fundamental rights recognised past times European Union law’, other than inwards ‘exceptional circumstances’. Also, the understanding failed to dominion out the possibility that when applying Protocol sixteen to the Convention, which provides for national courts to ship questions to the European Court of Human Rights (ECtHR) on the interpretation of the ECHR, those national courts would inquire the ECtHR to dominion on European Union constabulary issues, earlier they asked the CJEU. This would circumvent the EU’s preliminary ruling procedure.

 

Secondly, the draft accession understanding violated Article 344 TFEU, which gives the CJEU monopoly on inter-state dispute small town regarding European Union constabulary betwixt Member United States of America (paras 201-14), since it failed to dominion out the possible utilization of the ECtHR to settle such disputes instead.

 

Thirdly, the co-respondent system educate inwards the draft agreement, which creates a novel type of physical care for where both the European Union too a Member State could live parties to an ECtHR case, was incompatible alongside European Union constabulary for 3 reasons (paras 215-35). The employment alongside this physical care for was that: it would give the ECtHR the powerfulness to translate European Union constabulary when assessing the admissibility of requests to apply this process; a ruling past times the ECtHR on the articulation responsibleness of the European Union too its Member United States of America could impinge on Member State reservations to the Convention; too the ECtHR should non take maintain the powerfulness to allocate responsibleness for breach of the ECHR betwixt the European Union too Member States, since exclusively the CJEU tin dominion on European Union law.

 

Fourth, the rules inwards the draft treaty on the prior interest of CJEU earlier the ECtHR ruled on European Union constabulary issues were also incompatible alongside European Union law, for 2 reasons (paras 236-48). They did non reserve to the European Union the powerfulness to dominion on whether the CJEU has already dealt alongside an issue, too they did non permit the CJEU to dominion on the interpretation, non precisely the validity, of European Union law.

 

Finally, the rules on the Common Foreign too Security Policy (CFSP) were incompatible alongside European Union constabulary (paras 249-57), because a non-EU courtroom cannot live given the powerfulness of judicial review over European Union acts, fifty-fifty though the CJEU has no such jurisdiction itself every bit regards most CFSP issues.

 

Consequences

 

First too foremost, European Union accession to the ECHR apparently cannot instruct ahead on the footing of the electrical flow draft agreement. The Court has inwards effect provided a checklist of amendments to the accession understanding that would take maintain to live made to ensure that accession is compatible alongside European Union law. The amendments would take maintain to bargain alongside the next 10 issues: (a) ensuring Article 53 ECHR does non give ascendence for Member United States of America to take maintain higher human rights standards than the European Union Charter, where the European Union has fully harmonised the law; (b) specifying that accession cannot comport on upon the dominion of mutual trust inwards JHA matters; (c) ensuring that whatsoever utilization of Protocol sixteen ECHR past times national courts cannot undermine the European Union preliminary ruling system, presumably past times ruling out the utilization of Protocol sixteen where European Union constabulary issues are involved; (d) specifying expressly that Member United States of America cannot convey disputes connected alongside European Union constabulary earlier the ECtHR; (e) ensuring that inwards the co-respondent system, the ECtHR’s assessment of admissibility does non extend to the powerfulness to translate European Union law; (f) guaranteeing that the articulation responsibleness of the European Union too its Member United States of America for ECHR breaches cannot impinge upon Member State reservations to the Convention; (g) preventing the ECtHR from allocating responsibleness for ECHR breaches every bit betwixt the European Union too its Member States; (h) ensuring that exclusively the European Union institutions tin dominion on whether the CJEU has already dealt alongside an issue; (i) providing that the CJEU should live allowed to dominion on the interpretation, non precisely the validity, of European Union law, during the ‘prior involvement’ procedure; too (j) curtailing the role of the ECtHR to dominion on European Union unusual policy matters.

 

Any such changes to the accession understanding volition take maintain to live negotiated past times all 47 of the signatories to the ECHR. The accession understanding would, if agreed, so take maintain to live ratified past times all of these United States of America to come upward into force. It would also take maintain to live agreed unanimously past times the European Union Council, too ratified past times the European Parliament.

 

It’s hard to say inwards the abstract how hard such a renegotiation volition be. Suffice it to say that the compromise found inwards the electrical flow accession treaty was really hard to reach, too it’s hard to imagine that the EU’s demand for a 10 farther amendments to that text – which would necessarily live non-negotiable – would live received happily. 

 

Some of the Court’s objections likely represent alongside the intentions of the parties to the accession agreement, too it should live slow to select amendments reflecting that. However, about of them insist on either the primacy of the European Union Courts over the ECtHR, or would give priority to European Union constabulary over the inwardness of the rights protected past times the Convention. Those amendments would live hard to concord inwards principle, too it mightiness fifty-fifty live doubted whether they would live compatible alongside the intrinsic nature of the ECHR.

 

If those amendments were indeed live incompatible alongside the ECHR, in that place would live no bespeak wasting farther fourth dimension too travail on negotiating them. So it would live best for the Committee of Ministers to invoke Article 47 ECHR, which allows it to inquire the ECtHR to give an advisory sentiment on the interpretation of the Convention or its protocols. Arguably, this doesn’t extend to the draft accession agreement, but so that understanding inwards its electrical flow shape would ameliorate the ECHR; whatsoever revised understanding would probable ameliorate the ECHR fifty-fifty more. The ECtHR ought to take maintain a adventure to dominion on whether the CJEU’s preferred amendments to the ECHR violate the fundamentals of the Convention system.

 

Could the Court’s objections (or about of them) live met past times the European Union making reservations to the ECHR? According to Article 57 ECHR, reservations to the Convention are permitted, provided that they are non of a ‘general character’. The ECtHR has ruled inwards the past times that about reservations were invalid for breaching that rule. Much legal hurting would live avoided if the ECtHR ruled inwards advance (using the advisory procedure) on whether possible reservations past times the European Union would live valid. Arguably reservations relating to CFSP or JHA matters would indeed live invalid, due to their ‘general character’.

 

What if the physical care for of European Union accession stalls every bit a resultant of this judgment? It’s hardly an unlikely scenario. As a thing of European Union law, accession of the European Union to the ECHR is an obligation: the European Union ‘shall accede’ to the Convention. The European Union institutions tin live sued for whatsoever ‘failure to act’ to comply alongside their legal obligations. So arguably the Commission is nether an obligation to asking an amendment to its negotiation mandate, the Council is nether an obligation to grant it, too the Member United States of America are obliged to back upward the European Union seat (a breach of the latter obligation could live punished past times agency of infringement proceedings).

 

But a legal obligation deriving from the European Union Treaties cannot bind tertiary parties. If the ECtHR, or 1 or to a greater extent than non-EU Member States, reject to proceed alongside negotiations for accession on the footing of the CJEU’s demands, the European Union institutions too the Member United States of America could non live held liable for that.

 

The legal obligation to proceed the accession physical care for is, of course, distinct from the inquiry of regulation here: whether the accession physical care for ought to proceed on the footing of the CJEU opinion. I straightaway plough to that question, every bit purpose of my assessment of the Court’s reasoning.

 

 

Comments

 

There are 2 categories of objections to the ECHR accession inwards the Court’s judgment: procedural too substantive. The old are, for the most part, much less problematic than the latter. Let’s consider them inwards turn.

 

The procedural objections are essentially those inwards points (c) to (i) inwards the listing above, concerning: Protocol sixteen ECHR too the preliminary ruling process; inter-state dispute settlement; the co-respondent procedure; the prior interest procedure; too CFSP matters. Seven of these viii points take maintain 1 thing inwards common: preserving the CJEU’s powerfulness to dominion on European Union law. The exception is bespeak (i), because to a large extent, the CJEU has no powerfulness to dominion on CFSP matters. 

 

From the bespeak of take in of noun human rights protection, that start out grouping of 7 objections is non problematic inwards principle. It is reasonable for the CJEU to ensure that issues relating to European Union constabulary rest inside its jurisdiction (where that jurisdiction currently exists), leaving the ECtHR jurisdiction to dominion on the interpretation of the ECHR. Of course, it volition live hard, if non impossible, inwards practice, to divide the 2 issues, especially when it comes to ruling on the liability for breach of the Convention too the admissibility of the special procedures educate past times the draft agreement. 

 

But that is a nipper employment compared to the Court’s objections relating to CFSP, too to the inwardness of the ECHR. On the CFSP point, the Court’s objection is quite precisely mind-boggling. Human rights breaches unfortunately occur inwards unusual policy operations, ranging from violations of the correct to life, to arbitrary detention to human trafficking past times unusual forces. The CJEU has no jurisdiction to protect, every bit regards most CFSP matters; but it rules that the ECtHR cannot take maintain judicial review powers either. (Note to populace international lawyers: this must hateful that it would also breach European Union constabulary for Member United States of America to convey a CFSP dispute to the ICJ).

 

This goes beyond setting a dividing business over which Court has jurisdiction to translate European Union law: to repeat, the CJEU’s seat is that if it can’t take maintain jurisdiction over CFSP, so no other international courtroom can either. In short. since it isn’t allowed to play, it’s taking the football game away from everyone else. It’s the judicial politics of the playground. But it could take maintain serious consequences, leaving the victims of serious human rights violations without an effective remedy at international level. Or is the entire Earth meant to trust that the military machine forces from the continent that brought us the Holocaust too 2 World Wars would never, when acting nether the EU’s aegis, commit human rights offences?

 

This brings us to the 2 noun points: the demand to ensure that Member United States of America make non laid higher standards inside the plain of European Union law, too the demand to protect the regulation of mutual trust inwards JHA matters. On the start out point, the Court is today extending to the ECHR its long-standing regulation that the primacy of European Union constabulary prevents Member United States of America having higher human rights standards, where European Union constabulary has fully harmonised the matters concerned. From an European Union constabulary perspective, it’s perhaps non surprising that this dominion – which the Court had previously applied to the full general principles of European Union constabulary (the primary previous method of protecting human rights inwards the European Union legal system) too the Charter – also applies to the ECHR. But from the perspective of international human rights law, it’s shocking: it cuts into a cardinal regulation found inwards all human rights treaties.

 

The Court’s ruling on this bespeak would live less problematic if it were non for its ruling on mutual trust inwards JHA matters. After all, if it were possible to resist removal to about other Member State on human rights grounds despite the Dublin rules on asylum responsibility, or to resist the execution of a European Arrest Warrant on such grounds, so many violations of human rights inwards private cases would live avoided. But the Court reiterates, inwards really rigid terms, its established presumption that the European Union is built on the regulation of mutual trust inwards this area, which tin exclusively exceptionally live laid aside. One tin infer that the CJEU is seething well-nigh the ECtHR’s recent judgment inwards Tarakhel, which conspicuously failed to defer to the ECJEU’s poorly reasoned defense strength of the Dublin organisation inwards in conclusion year’s Abdullahi judgment (see intelligence here).

 

On the JHA point, the Court is insisting that its ain innovation of the European Union JHA organisation must prevail over human rights protection every bit defined past times the ECtHR. The underlying theme of both of these noun points is that the ECHR should arrange to European Union constabulary every bit defined past times the CJEU, non the other way around.

 

Is that fundamentally justifiable? It’s smasher that the ‘values’ of the European Union – which are a status for European Union membership, too which could Pb to respite of a Member State inwards serious cases – include human rights too related principles. There’s no advert of the primacy of European Union law, of mutual trust inwards JHA matters, or of divesting whatsoever international courtroom from having jurisdiction over CFSP matters. Indeed, on the latter point, today’s judgment clearly shows contempt for the ‘rule of law’, about other founding value mentioned inwards Article 2 TEU. And for JHA inwards particular, the Treaty drafters provided inwards Article 67(1) TFEU that the European Union must ‘constitute an expanse of freedom, safety too jurist with observe for fundamental rights’. The Treaty doesn’t give priority to mutual trust over human rights – quite the opposite.

 

This leads me to a in conclusion point. As noted above, the European Union retains a legal obligation to accede to the ECHR, too must thus select about steps to that end. But, every bit a thing of principle, is it all the same worth advocating European Union accession to the Convention?

 

Quite frankly, European Union accession to the Convention, inwards the price defined today past times the CJEU, could exclusively appeal to those who don’t similar human rights really much. In fact, inwards many respects the Court’s judgment is essentially a to a greater extent than articulate too EU-specific version of the document lately produced past times the UK’s Justice Minister, which sought changes to the constabulary to ensure that the United Kingdom of Great Britain too Northern Ireland of Britain too Northern Republic of Ireland would live costless to make every bit it wished every bit regards human rights issues, patch (possibly) nominally remaining a signatory of the ECHR. Of course, those who dislike the ECHR tend to dislike the European Union every bit well, so this is a narrow footing politically to instruct forward. In particular, those who would similar to combat the European Arrest Warrant (EAW) because of the miscarriages of jurist which it sometimes produces (rather than examine too preclude those miscarriages) are hardly probable to favour a physical care for which would live specifically aimed to entrench those failings.

 

As for those of us who back upward human rights protection, today’s judgment is an unmitigated disaster. For the most part, human rights advocates take maintain supported European Union accession to the ECHR for many years, inwards fellowship to ensure effective external command of the failings of the European Union too (within the orbit of European Union law) its Member United States of America every bit regards human rights. But today’s CJEU judgment has surgically removed that key argue for supporting accession.

 

Far from enhancing the protection of human rights inside the European Union legal order, the EU’s accession to the ECHR, on the price which the CJEU insists upon, would significantly diminish it, for the European Union would live compelled to ensure that it insulates itself against many human rights claims that mightiness live brought against it.

 

So for the sake of those who are trafficked past times EU-coordinated troops, who are suffering miscarriages of jurist inwards EAW proceedings, who are beingness pushed dorsum from the EU’s shores, drinking from toilets inwards immigration prisons, starving on the streets because Member United States of America won’t or can’t give them housing or benefits, or drowning inwards a desperate endeavor to accomplish European refuge, nosotros straightaway take maintain a moral duty to reject the EU’s accession to the ECHR.

 

 

Barnard & Peers: chapter 9

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