Opinion 2/13 on EU Accession to the ECHR: The CJEU as Humpty Dumpty

Aidan O’Neill QC

‘When I use a word,’ Humpty Dumpty said, in rather a scornful tone, ‘it means just what I choose it to mean, neither more nor less.’

‘The question is,’ said Alice, ‘whether you can make words mean so many different things.’

‘The question is,’ said Humpty Dumpty, ‘which is to be master – that’s all.’

Lewis Carroll: Chapter 6 of Through the Looking Glass and what Alice found there (1871)


 

The Human Rights Gap in the EU

The European Court of Human Rights noted in Cooperatieve Producentenorganisatie van de Nederlandse Kokkelvisserij UA v Netherlands (2009) 48 EHRR SE18 (non-admissibility decision of the ECtHR, 20 January 2009):

“The European Community has separate legal personality as an international intergovernmental organisation (see Article 281 of the EC Treaty, quoted above). At present, the European Community is not a party to the Convention … The application is therefore incompatible with the provisions of the Convention ratione personae within the meaning of Article 35 § 3 of the Convention in so far as the applicant association’s complaints must be understood as directed against the European Community itself (see Confédération française démocratique du travail v The European Communities, alternatively: their Member States a) jointly and b) severally, no 8030/77, Commission decision of 10 July 1978, Decisions and Reports (DR) 13, p 235) and must be rejected pursuant to Article 35 § 4.

Although the European Court of Human Rights is thus prevented from deciding issues of EU law (Jeunesse v. France [2014] ECHR 12738/10 (Grand Chamber, 3 October 2014) at para 110) or from examining the procedure of the CJEU directly in the light of the requirements of the ECHR (notably Article 6(1) ECHR), the possibility for an indirect Strasbourg review of the Convention compatibility of the CJEU’s procedures arises from the degree to which the Strasbourg Court considers that the events complained of in any application engage the responsibility of all or any of the individual Member States which are also all contracting parties to the Council of Europe. This is, perhaps, a less than satisfactory solution, certainly for the Member States who might find themselves saddled with responsibility by the European Court of Human Rights for procedures and proceedings before the CJEU over which, as individual States, they have no direct control and little influence (see Boivin v France and 33 other Member States of the Council of Europe [2008] ECtHR 73250/01 (Fifth Section, 9 September 2008) and Connolly v 15 Member States of the European Union [2008] ECtHR 73274/01 (9 December 2008)) should the Strasbourg Court come to the view that the procedures of the CJEU did not provide ‘equivalent protection’ to that directly guaranteed under the Convention.

The Agreement on the Accession of the EU to the ECHR

After largely secret negotiations (see Case T-331/11 Besselink v. Council of the European Union 12 September [2013] ECR II-nyr [2014] 1 CMLR 28) negotiations between the two European (EU and Council of Europe) institutions on the accession of the EU to the ECHR successfully ended on 5 April 2013 and a concluded agreement was reached on how the EU – and EU law – could be integrated within the Strasbourg system for the protection of European human rights (See the Fifth Negotiation Meeting between the CDDH Ad Hoc Negotiation Group and the European Commission on the Accession of the European Union to the European Convention on Human Rights, Final Report to the CDDH, April 5, 2013, 47+1(2013)008, available here.

This agreement made provision to allow for the involvement of the EU institutions in all cases where an application to the Strasbourg court alleged that a provision of EU law is incompatible with the ECHR. In effect, the agreement setting up of some kind of “preliminary reference downward” from the Strasbourg Court to the CJEU, in applications from individuals complaining of an incompatibility between EU law and the ECHR, so as to allow the CJEU to exercise an “internal review” on the issue before the European Court of Human Rights exercises its “external review” under the Convention. Article 3(6) of Draft revised agreement on the accession of the European Union to the Convention for the Protection of Human Rights and Fundamental Freedoms (June 2013) provided as follows:

“6. In proceedings to which the European Union is a co-respondent, if the Court of Justice of the European Union has not yet assessed the compatibility with the rights at issue defined in the Convention or in the protocols to which the European Union has acceded of the provision of European Union law as under paragraph 2 of this article, sufficient time shall be afforded for the Court of Justice of the European Union to make such an assessment, and thereafter for the parties to make observations to the Court. The European Union shall ensure that such assessment is made quickly so that the proceedings before the Court are not unduly delayed. The provisions of this paragraph shall not affect the powers of the Court.”

 In such proceedings contracting States to the ECHR were to have the same opportunity as member State of the EU to submit written observations to the Court of Justice on the proper disposal of the matter by the Luxembourg Court. The Draft declaration by the European Union to be made at the time of signature of the Accession Agreement.

“Upon its accession to the Convention, the European Union will ensure that:

a) it will request to become a co-respondent to the proceedings before the European Court of Human Rights or accept an invitation by the Court to that effect, where the conditions set out in Article 3, paragraph 2, of the Accession Agreement are met;

b) the High Contracting Parties to the Convention other than the member States of the European Union, which in a procedure under Article 267 of the Treaty on the Functioning of the European Union are entitled to submit statements of case or written observations to the Court of Justice of the European Union, be entitled, under the same conditions, to do so also in a procedure in which the Court of Justice of the European Union assesses the compatibility with the Convention of a provision of European Union law, in accordance with Article 3, paragraph 6, of the Accession Agreement.”

The subordination of the Court of Justice to the European Court of Human Rights?

It is clear that the intention of the parties to this agreement was to give the European Court of Human Rights jurisdiction in cases to which the EU is party so as to close the perceived human rights gap.   This means, of course, that the decision of the Strasbourg Court would become binding as a matter of international law on EU institutions, including the CJEU.

Going by its past case law, it was always clear that the Court of Justice would have a problem with any agreement which results in it being subordinated to any other court.   In its Opinion 1/91 Re a Draft Treaty on a European Economic Area [1991] ECR I-6079, the Court of Justice vetoed the establishment of an EEA court hierarchy to provide a system of judicial supervision over the whole EEA beyond the EU. The proposed new court structure consisted of an independent EEA Court, functionally integrated with the ECJ, and an EEA Court of First Instance. The new EEA courts were to consist of a number of judges from the ECJ and the CFI sitting together, with judges appointed from the various EFTA Member States. The Court of Justice found that such a system of judicial supervision proposed under the draft EEA Treaty was not lawful on the grounds, inter alia, that the proposed system of EEA courts might undermine the autonomy of the EU legal order in pursuing its own particular objectives, going so far as to claim (at paras 70–71):

“Article 238 of the EEC Treaty [now, after amendment, Art 218 TFEU] does not provide any basis for setting up a system of courts which conflicts with Article 164 of the EEC Treaty [now, after amendment, Art 19(1) TEU] and, more generally, with the very foundations of Community law. For the same reasons, an amendment of Article 238 in the way indicated by the Commission could not cure the incompatibility with Community law of the system of courts to be set up by the agreement.” (emphasis added).

 And in its Opinion 1/09 Re draft agreement on the European and Community Patents Court [2011] ECR I-1137 the Court of Justice states (at para 89):

“[T]he envisaged agreement, by conferring on an international court which is outside the institutional and judicial framework of the European Union an exclusive jurisdiction to hear a significant number of actions brought by individuals in the field of the Community patent and to interpret and apply European Union law in that field, would deprive courts of Member States of their powers in relation to the interpretation and application of European Union law and the Court of its powers to reply, by preliminary ruling, to questions referred by those courts and, consequently, would alter the essential character of the powers which the Treaties confer on the institutions of the European Union and on the Member States and which are indispensable to the preservation of the very nature of European Union law.   Consequently, the CJEU (Full Court) gives the following Opinion: the envisaged agreement creating a unified patent litigation system (currently called “European and Community Patents Court”) is not compatible with the provisions of the EU Treaty and the FEU Treaty.”

The decision in Opinion 2/13

A hearing before the CJEU seeking its Opinion on the compatibility of this draft agreement with the requirements of EU law was heard in Luxembourg in the first half of 2014.   In its Opinion 2/13 which was issued on 18 December 2014 the EU Court of Justice sitting as a Full Court has rejected the legal submissions of the Commission, the Council, the European Parliament and the 24 Member States who submitted observations to it (only Croatia, Luxembourg Malta Slovenia failed to take part in this procedure) and has ruled that

“the agreement on the accession of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms is not compatible with Article 6(2) TEU or with Protocol (No 8) of the Treaty on European Union on the accession of the Union to the European Convention on the Protection of Human Rights and Fundamental Freedoms.”

The relevant Treaty provisions

The relevant Treaty provisions to this Opinion 2/13 are as follows:

Article 6(2) TEU

2. The Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms. Such accession shall not affect the Union’s competences as defined in the Treaties.

This provision was inserted into the Treaties by the Member States after the Court of Justice declared in its Opinion 2/94 Re Accession by the EU to the European Convention for the Protection of Human Rights and Fundamental Freedoms [1996] ECR I-1759 that it was not competent for the EU to accede to the ECHR without specific Treaty provision to this effect.

Against that background, Article 6(2) TEU might have been understood as a provision intended by the Member States, as Masters of the Treaties, to alter the constitutional law of the EU and to stipulate as a matter of law, contrary to the Court of Justice’s expressed concerns, that the accession of the EU to the ECHR (which all the Member States wished for) would not affect EU competences as defined in the Treaties.   Instead the Court of Justice appear to have interpreted Article 6(20 TEU more along the following lines:

“If, in the opinion of the Court of Justice, the accession of the Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms shall affect the Union’s competences as defined in the Treaties, then the EU cannot accede to the ECHR.”

Article 51 TEU states that “The Protocols and Annexes to the Treaties shall form an integral part thereof.”   Protocol (No. 8) TEU on the EU’’s accession to the ECHR provides as follows

Article 1

The agreement relating to the accession of the Union to the European Convention on the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as the ‘European Convention’) provided for in Article 6(2) of the Treaty on European Union shall make provision for preserving the specific characteristics of the Union and Union law, in particular with regard to:

(a) the specific arrangements for the Union’s possible participation in the control bodies of the European Convention;

(b) the mechanisms necessary to ensure that proceedings by non-Member States and individual applications are correctly addressed to Member States and/or the Union as appropriate.

 Article 2

The agreement referred to in Article 1 shall ensure that accession of the Union shall not affect the competences of the Union or the powers of its institutions. It shall ensure that nothing therein affects the situation of Member States in relation to the European Convention, in particular in relation to the Protocols thereto, measures taken by Member States derogating from the European Convention in accordance with Article 15 thereof and reservations to the European Convention made by Member States in accordance with Article 57 thereof.

Article 3

Nothing in the agreement referred to in Article 1 shall affect Article 344 of the Treaty on the Functioning of the European Union.

 Article 344 TFEU states:

“Member States undertake not to submit a dispute concerning the interpretation or application of the Treaties to any method of settlement other than those provided for therein.”

Again the Court of Justice in its Opinion 2/13 appears to have interpreted these provisions of Protocol No. 8 to mean that:

“If, in the opinion of the Court of Justice, any agreement relating to the accession of the Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms authorises Member States to submit a dispute concerning the interpretation or application of the Treaties to any method of settlement other than its final resolution by the “Court of Justice, then this does not provide a lawful basis for the EU to accede to the ECHR.

Conclusion

Effectively what we have in this Opinion 2/13 is a claim by the Court of Justice that it is Master of the Treaties and a declaration that it will refuse to recognise the lawfulness of any agreement among the Member States which might be threaten to displace the Court of Justice as the apex Court for the European Union.

The Opinion appears to be more about the Court of Justice’s fears about its constitutional position rather than about the closing of any gap in human rights protection in the EU.

The Court of Justice places great stress on the autonomy of EU law, but nowhere explains why that autonomy is threatened by the possibility of direct human rights review by the European Court of Human Rights of the action and inaction of all the EU institutions (including the CJEU) any more than the autonomy of the legal systems and constitutions of the existing contracting States of the Council of Europe is threatened or called into question by the fact that they operate under the ultimate jurisdiction supervision of the Strasbourg Court as the relevant regional international human rights court for Europe.

 Notoriously, Humpty Dumpty – after re-defining the questions asked of him as meaning essentially that they were about “which is to be master – that’s all” – had a great fall and could not be put back together again.     The Court of Justice, too, should remember that with hubris comes nemesis.

Event: The EU Air Passenger Rights Regulation 261/2004: Ten Years On

College of Europe, Bruges, 26-27 September 2014.

Organised jointly with the IECL, Oxford, with the kind support of the Söderberg Foundation.

This workshop will be the second in a recently established EU Law in the Member States series (Hart Publishing), dedicated to exploring the impact of landmark CJEU judgments and secondary legislation in legal systems across the European Union.  J Malenovský of the Court of Justice will give a keynote address, and the meeting will bring together generalist EU lawyers and experts in the field, combining perspectives from a wide range of different member states in order to compare and analyse the effect of EU law on domestic legal systems and practice.

A programme is already online; to register, please go here.

For further information, please contact jeremias.prassl@law.ox.ac.uk or michal.bobek@coleurope.be.

Taxing Times: the UK’s Challenge to the Financial Transaction Tax

KAProf Kenneth Armstrong, University of Cambridge

Ever tried. Ever failed. No matter. Try again. Fail again. Fail better.

Samuel Beckett

Just over a year since the United Kingdom (UK) commenced legal proceedings against the Council of the EU challenging its decision to authorise the use of enhanced cooperation for the adoption of the proposed Financial Transaction Tax (FTT), the Court of Justice has, as anticipated, dismissed the UK’s application (Case C-209/13, United Kingdom v Council). This is another defeat for the UK following on from its unsuccessful challenge to the powers of the European Securities and Markets Authority to control ‘short-selling’. Whether the UK will have more success in the third of its triptych of legal challenges to measures adopted in the wake of the financial crisis – the cap of ‘bankers’ bonuses’ – is yet to be determined. However, in the lead up to the European Parliament elections, with the United Kingdom Independence Party riding high in the polls and the UK prime minister declaring that he will not act as prime minister following the 2015 general election unless there will be a referendum on the UK’s continuing membership of the EU, it is clear that these defeats before the Luxembourg court have both political and legal saliency.

 

Continue reading

Making Infringement Procedures More Effective: A Comment on Commission v. Hungary, Case C-288/12 (8 April 2014) (Grand Chamber)

scheppele, kimKim Lane Scheppele, Princeton University 

On 8 April, Hungary lost again at the Court of Justice of the European Union (ECJ). The European Commission had alleged that that Hungary violated the independence of its data protection officer and the ECJ agreed. The case broke little new legal ground.   But it is important nonetheless because it signals serious trouble within the EU.   The case exposes Hungary’s ongoing challenge to the EU’s fundamental principles. And it exposes the limitations of ordinary infringement proceedings for bringing a Member State back into line.

 The Commission may have won this particular battle, but it is losing the war to keep Hungary from becoming a state in which all formerly independent institutions are under the control of Fidesz, the governing party.   The Commission clearly sees the danger of one-party domination and it has attempted to challenge the Hungarian government before. But the Commission has so far not picked its battles wisely or framed its challenges well. It could do better. The case of the data protection officer is a case in point.  

Continue reading

The Commission gets the point – but not necessarily the instruments

european-union-flags-at-t-0021Jan-Werner Müller

This week the European Commission issued a Communication about a new framework for protecting the rule of law within EU Member States.[1]  Is this the long hoped for mechanism that allows the EU to deal with internal threats to liberal democracy (the democratic deficits within Member States, so to speak) effectively?  The clear-cut answer is: yes and no.  The Commission has evidently understood that attempts systematically to undermine rule of law principles require a different response than individual infringement proceedings.  Depending on the circumstances, a structured process of naming and shaming which is now available to the Commission might work.  But if it doesn’t, then the Commission will remain just as helpless as before: no new sanction mechanisms are envisaged (and, to be fair, none might be feasible without treaty change).  In that sense, the new framework formalizes — or, in the words of Commission President Barroso, “consolidates” – the Commission’s de facto approach in recent years.  This is not a trivial achievement; and it’s probably the most the Commission could do on the basis of existing law and with available institutions such as the Fundamental Rights Agency.  It may well deter some governments.  But for illiberal national politicians determined to go head to head with the Commission, there is in the end still only Article 7 TEU – and that remains as difficult to put into effect as before.

The Commission’s initiative comes against the background of threats to liberal democracy in Hungary and Romania since about 2010 — and an acute sense among many observers (and also among political actors) that the Union has been ill-equipped to deal with a challenge one might call “constitutional capture.”  Constitutional capture is different from pervasive corruption (a major problem still in Bulgaria and Romania, for instance); but it is also different from individual rights violations, grave as the latter might be.  Constitutional capture aims at systematically weakening checks and balances and, in the extreme case, making genuine changes in power exceedingly difficult.  Hungarian Prime Minister Victor Orbán actually passed a new constitution for his country (a case of formal constitutional capture); his Romanian counterpart Victor Ponta, in the summer of 2012, blatantly tried to disable checks and balances (the constitutional court in particular) to get rid of his political arch-enemy, the President of Romania (this being a matter of attempting an informal constitutional capture).

In both cases, the Commission got into a direct confrontation with the respective national governments.  While the EU arguably helped to avoid the worst, the experience seemed to point to a significant weakness of the Commission as a guardian of the treaties: it could take governments to court for individual infringements of EU law, but it proved incapable of addressing systematic attempts to undermine the rule of law.  In some cases, it could not “read” certain laws for what they were, but had to reinterpret them in an EU framework such that their real political meaning was officially missed.  When Orbán’s government effectively decapitated the Hungarian judiciary by drastically lowering the retirement age of judges, the EU sued Hungary for age discrimination.  Brussels won its case, but the judges were never re-instated; the political situation remained more or less as Orbán’s government wanted it.       Continue reading

Event: The Image(s) of the ‘Consumer’ in EU Law: Legislation, Free Movement and Competition Law

The Institute of European and Comparative Law at the University of Oxford is hosting an event from the 27 to 28 March. Full details are below.

University of Oxford

The Image(s) of the ‘Consumer’ in EU Law: Legislation, Free Movement and Competition Law

Thursday 27 March 2014 until Friday 28 March 2014

Venue: St Anne’s College

Organisers: Professor Stephen Weatherill & Dr Dorota Leczykiewicz Continue reading

Jobless EU migrants and housing benefit

Dr Iyiola Solanke

According to reports from the BBC, ‘jobless migrants from within the European Union will be denied access to housing benefit from April this year’. Housing benefit is an ‘in –work’ benefit which provides support with rent for those who are unemployed or on a low income. As it is means tested, it may not cover all rent costs. It is administered through local councils to private and social landlords. Universal credit[1] will replace housing benefit in 2015. Before then, both Home Secretary Theresa May and Work and Pensions Secretary Iain Duncan Smith intend to introduce plans to ‘prevent exploitation of the UK welfare system’ by ‘jobless’ EU migrants.

Research[2] suggests that EU migrants are less likely than UK nationals to claim any form of benefits so the prevention of exploitation by targeting EU migrants is questionable. Furthermore, who are the jobless EU migrants – are they a composite group? Finally, as these measures will not apply to jobless nationals, would such action be compatible with EU law? There is indeed little free movement for jobless migrants under EU law[3] but when is an EU migrant ‘jobless’?

The ‘Jobless’

Focusing on the ‘jobless’ draws a broad distinction between this group and EU migrant ‘workers’: the former have few rights under EU law while the latter have many. Article 45 TFEU provides free movement to workers within the EU. A worker under EU law is a person who is employed: in Lawrie Blum and Collins the CJEU defined a worker as a person who provides services under direction of another for remuneration. The work itself must constitute a ‘genuine economic activity’: in Steymann the provision of maintenance tasks for was seen as such whereas in Bettray work conducted as part of a rehabilitation scheme was not. The number of hours worked and level of salary are irrelevant to the definition.[4]

The Citizenship Directive (CD) adopted in 2004 guarantees migrant EU workers and other ‘qualified persons’[5] equal treatment with nationals in the territory of a host member state. Migrant EU workers benefit from non-discrimination on the grounds of nationality – they and their family members are to be treated in the same way as any national worker, in relation to work, education and access to benefits. Conditions for this equal treatment are set out in Chapter III of the CD. Continue reading

Winter break

photo (7)We’re in and out of the office for the next few weeks, so we’ll be scaling our blogging back until the New Year. Happy Holidays from the editorial team.

If you are interested in contributing to EUtopia Law please get in touch! You can email Laura here.

Eight ‘right’ reasons why Chancellor Merkel will relax austerity

Dr Gunnar Beck

As I predicted in the Handelsblatt, Germany’s leading financial daily, Merkel emerged as the clear victor in Germany’s recent elections. It now seems there will be another Grand Coalition with the Social Democrats. Merkel’s popularity is due in no small measure to her management of the euro crisis where so far she has been able to present herself to many Germans as a tough negotiator insisting on strict assurances of tighter budgetary discipline in return for any German money. The truth is that the money is as good as gone but Merkel has profited from the extraordinary political imbecility of her opponents who whenever Merkel reluctantly agreed to yet further concessions to aid the euro, decried her hesitation to say she should have given in long before. Before the election, the SPD was calling for a German-led ‘Marshall plan’ for the euro. The SPD performed poorly in the elections, but their party’s policy on the euro is likely to prevail.  Merkel will soften her stance, and offer more solidarity in return for less and less solidity – not because of the Social Democracts and because post-war Germans, and especially Germany’s political elite, can no longer pronounce the word ‘national interest.’

The reasons for this are many, but in one way or another all relate to: i. Germany’s historical guilt complex, ii. the triumph of short-term calculus over long-term evaluation, and iii. the rise of oligarchic democracy in the West.

First, Chancellor Merkel, like any mainstream German politician, is a convinced pro-integrationist. ‘If the euro fails’, she has said again and again, ‘Europe fails.’ Those words, to the sober-minded, are devoid of logic. Yet, they signify a deep-seated and abiding commitment to EU integration and the single currency, not readily understood outside Germany.  Germany’s political establishment has been committed to ‘ever closer EU integration’ ever since West Germany became a state in 1949. The euro is part of that integration process. Any German Chancellor who would pull the plug on the euro, would be subject to unprecedented foreign political and media criticism and go down in history as a dangerous nationalist who placed narrow self-interest over wider responsibilities, turned his back on six decades of ostensibly consensus–based integration politics, plunged Europe into a long recession, and would get no credit for burying the single currency which never suited Europe. Merkel could probably rely on majority popular support, but, like any other German politician, she could not withstand market turmoil, the lobbying pressure by the financial services and multi-national industrial sectors, or the unprecedented foreign and domestic political and media criticism of the kind not experienced by any Germany Chancellor. Continue reading

Summer recess

We’re scaling our blogging back over the break, but keep an eye out for developments on Twitter.

If you are interested in contributing to EUtopia Law please get in touch! You can email Laura here.

Enjoy the summer and we’ll see you at the start of the new term.