On Monday 30th of January I attended a conference organized by the European Academy of Law in Brussels on the latest developments on EU Accession to the ECHR. The meeting offered some illuminating insights into the contrasting perspectives of senior officials and judges from the CJEU and ECrtHR as well as members of the informal working group (CDDH-UE) charged with the drafting of the accession agreement. The final version of the draft legal instrument issued by the joint working group was released on 19th July 2011 for consideration and approval by EU and CoE institutions as well as Member States.
My overwhelming impression was that the process, particularly on the EU side, is unlikely to live up to the ‘rapid’ pace prescribed by Article 6 (2)(1) of the Lisbon Treaty. According to Luca de Matteis, from the General Secretariat of the Council of the European Union, questions still open in relation to the draft accession instruments include the scope of EU’s accession and submission to ECtHR’s jurisdiction of violations deriving from EU’s Common foreign and security policy acts, “cases and conditions for unclenching the co-respondent mechanism” and voting arrangements for supervision of execution of judgments against the EU.
All of these are significant substantive questions which could cause significant delays, particularly as the procedures for EU accession, set out by Dr. Hannes Kramer, the EU chief negotiator on Accession to the ECHR, point to a number of potential roadblocks on the way. Amongst these are the opinion of the CJEU, which will be sought on the compatibility of any finalized draft agreement with the Treaties and the requirement under Art. 218(8) TFEU that the ‘entire package’ be unanimously approved by Member States as well as separate ‘approval’ by each Member State in accordance with their own respective national laws. By contrast, the next steps in the procedure at the Council of Europe look strikingly simple. Once the EU has achieved a common position on the draft agreement, negotiations will resume at the ComMin, or if needed in relation to any proposed amendments to the drafts at the CDDH. The final agreement will be transmitted to the Parliamentary Assembly for its opinion and to the ComMin for adoption before opening to signature.
The draft agreement was praised by Prof. Francoise Tulkens, Vice-President of the European Court of Human Rights, for the elegant solution she thought the co-respondent mechanism and prior-involvement of the CJEU court offer to the very difficult questions raised by accession. She dismissed concerns expressed in the academic literature that the agreement has mostly increased “complexity rather than human rights protection itself” (S. Douglas-Scott, Human Rights Law Review (2011) 11 (4): 645-682. doi: 10.1093/hrlr) as overly pessimistic. Yet, there is much force in the arguments raised by Dr. Adam Weiss, assistant Director of AIRE, that the co-respondent mechanism envisaged by the draft agreement will put significant additional burdens on applicants who will be forced into facing two instead of one defendant, in a David v Goliath battle. In a eutopian legal world one could have imagined less burdensome mechanisms for applicants, leaving questions as to the relative liability of the EU vis-à-vis Member States to be settled in separate legal proceedings. Such an approach may be found, for instance, in common law principles of liability for multiple negligent tortfeasors where the claimant is given the choice of who to sue whilst the apportionment of damages reflecting liability as between various tortfeasors is left to be determined by the court in separate proceedings.
There was much emphasis by Prof. Christiaan Timmermans, former judge at the CJEU, about what he described as ongoing co-operation and dialogue between the two courts. As some participants pointed out, formalization of such ‘dialogues’ in the form, for instance, of mechanisms for referrals from the CJEU to the ECrtHR would be highly desirable though not contemplated in the agreement. Other participants expressed doubt about the legal basis in Article 6 and Protocol 8 TFEU of the inevitable enlargement of the CJEU’s competence created by the procedure for prior involvement of the court created under Article 3(6) of the draft agreement.
Notwithstanding the very real legal challenges posed by the agreement, the compelling case for rapid accession was made by Dr. Johan Callewaert, Deputy Grand Chamber Registrar at the European Court of Human Rights, who pointed to the confusion created by the proliferation in EU law of Directives and other legal instruments laying down human rights standards without coordination or due regard to what basic standards of protection require. Only three days earlier, the new President of the European Court of Human Rights in his inaugural speech had lamented that the process of accession had stalled and stressed the urgency of accession for the sake of preserving legal certainty in the field of European fundamental rights protection and the need for an external mechanism to provide the minimum protection standard applicable in the field. Alas, the evidence from the conference points to a long and winding road for the protection of fundamental human rights to be brought home in the EU.