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  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  ECtHR 73250/01 (Fifth Section, 9 September 2008) and Connolly v 15 Member States of the European Union  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  ECR II-nyr  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  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  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  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
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.
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.
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.
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.