The prospect of the
EU accession to the ECHR has been anticipated for many years. With the amendment of the Treaties to provide for
this (in the Lisbon treaty), and the negotiation of an accession treaty by
2013, it looked as if the CJEU ruling on the accession treaty in December 2014
would formalise the celebrations. But in the event, the Court’s surprising
ruling (Opinion
2/13) – highly criticised
on this blog – curtailed the accession process.
Eventually,
however, the process was restarted in 2019 and has gathered pace since. The
following two blog posts – by Anita
Kovacs and Stian Øby Johansen
– update and analyse the latest developments, providing in turn an overview of
the process and more detailed comments on the issues. The comments by Stian Øby
Johansen are partly reblogged from here
and here.
The on
and off negotiations on the EU’s accession to the ECHR – it’s complicated
Anita
Kovacs, MA in EU Law, King’s College London
The European
Union’s (EU) accession to the European Convention of Human Rights (ECHR) has
been on the European agenda for decades. This post intends to provide a short review
of past events, an insight into the recently revived negotiations as well as an
outlook on what to expect next.
Past
In 1996, the Court
of Justice of the European Union (CJEU) gave its first opinion on the EU’s
accession to the ECHR (Opinion
2/94). At the time, the court ruled that the European Community did not
have the competence to accede to the ECHR (paras 34-35).
A legal basis for
the accession was established when the Lisbon Treaty entered into force in
2009. Article 6(2) TEU states that the EU shall accede to the ECHR and hence,
creates a legal obligation.
The 14th
Protocol to the ECHR paved the way for the accession by introduction of Article
59(2) ECHR declaring that the EU may accede to the ECHR.
In 2013, the Accession
Agreement was submitted to the CJEU to obtain an opinion on the
compatibility with the treaties pursuant to Article 218(11) TFEU.
In the following
year, the court delivered the famous Opinion
2/13 (discussed here)
and despite significant arguments in favour of an accession, concluded that the
Accession Agreement was incompatible with EU law (para 258). Interestingly, the
European Commission, supported by observing Member States (para 109), advocated
the opposite position (para 73).
Advocate
General Kokott suggested a ‘qualified approval’ of the Accession Agreement
meaning that the agreement is, in principle, compatible with EU law but still
requires some modifications to it (paras 278-280). She also provided
inspirations on possible ways to conciliate EU law requirements and the
accession (e.g. para 234).
Present
In late 2019, the EU
and the Council of Europe announced their willingness to proceed with the
negotiations on the EU’s accession. The negotiations will take place within an
ad hoc Group composed of representatives of the 47 Council of Europe members
and one EU representative (“47+1 Group”).
Since January 2020,
the parties are formally ready to resume negotiations on the accession of the
EU to the ECHR. (See the Council of Europe’s website
on the accession process).
A first informal
meeting took place in June 2020, where the European Commission clarified
that it intends to realise the accession by ‘modulations’ to the Accession Agreement.
These should preserve the EU’s special characteristics while meeting the
requirements set out in Opinion 2/13.
The speakers reiterated that the CJEU’s objections require some serious work,
but they are not insurmountable. It was further made clear that the talks are
not constituting a new beginning for the accession process, the negotiations
are rather picked up where they were left off in 2013. This means that the
Draft Accession Agreement lays the foundation for the upcoming meetings and
provides the parties with a frame to work in.
The European
Commission elaborated four main areas of concern for the upcoming negotiations:
the EU specific mechanisms of the procedure before the ECtHR, inter-party
applications under Article 33 ECHR and references for an advisory opinion from
national courts to the European Convention of Human Rights under Protocol
No.16, the principle of mutual trust and the EU’s Common foreign and
security policy (CFSP).
These aspects have
found their way onto the agenda of the
first official negotiation meeting after Opinion
2/13. They were further divided into subordinate issues by the Chair of the
47+1 Group in preparation
of this meeting. The Chair’s paper to structure the discussions also included
various considerations possibly decisive for finding a solution to the ten
issues elaborated.
The meeting
initially scheduled for March 2020 was postponed due to the Covid-19 pandemic
to 29th September to 1st October 2020 (6th negotiation meeting). It is to be
welcomed, that in this meeting, the
47+1 Group decided to extend the scope of consultations with NGOs and members
of the civil society in terms of frequency and participants. The meeting
summarised various positions on the aspects raised by Opinion 2/13. The main discussions, however, were postponed to the
next meeting.
The 7th negotiation
meeting conducted from 24th to 26th November 2020 mainly provided the stage
for discussions on the EU specific mechanisms of the procedure before the
ECtHR, inter-party applications under Article 33 ECHR and references for an
advisory opinion under Protocol No.16. Several proposals were put forward, most
of them requiring further consideration. Surely, the meeting has demonstrated the
willingness to find flexible solutions and to advance these constructively.
The next meeting is
scheduled for 2nd to 4th February 2021, where the issues of mutual trust and
CFSP shall be examined. The 9th negotiation meeting is anticipated in late
March 2021.
Future
According to
Article 218(6) TFEU, the European Parliament’s consent to the Accession Agreement
is required. Only then can the Council adopt a decision concluding the
agreement. The Council must do so unanimously, and the Accession Agreement
should be concluded after the EU member states have approved it in accordance
with their constitutional requirements (Article 218(8) TFEU).
As mentioned above,
Opinion 2/13 was delivered following
a request
by the European Commission according to the procedure provided by Article
218(11) TFEU. This article provided that an opinion on the compatibility of an
agreement with the treaties may be obtained. Hence, one could raise the
question whether the revised Accession Agreement will again be subject of an
opinion by the CJEU. In its request, the Commission underlines what the CJEU
has often stressed in its opinions (see e.g. Opinions 2/13 and 2/94).
The purpose of such opinions was to “forestall complications which would result
from legal disputes concerning the compatibility with the Treaty of
international agreements binding upon the Union” (para 60). Another argument in
favour of an opinion is that the implementation of internal rules should be
supported by the certainty that the foundation of these rules is compatible
with EU primary law.
Not only the CJEU
may be given a chance to rule on the revised Accession Agreement. As
Switzerland proposed during the informal meeting in June 2020, the ECtHR could
be asked to give its opinion on the agreement. Article 47 ECHR could
potentially provide for this opportunity. The possibility of such an opinion
was mentioned again in the September meeting, adding that the revised agreement
would first have to be submitted for adoption to the Council of Ministers.
After the CJEU
approves, the Council of Ministers must adopt the revised Accession Agreement and
then open it for signatures. All 47 High Contracting Parties to the Convention
will have to ratify the revised agreement according to Article 59 ECHR.
In the meeting in
June 2020, it was emphasised that the risks of a failed accession can be
severe. Participants agreed on the necessity and urgency of the matter. The
aims of legal certainty and coherence of human rights protection should always
be borne in mind.
While it is not
clear if this negotiation round will call for a similar time frame of three years
like the previous one, we will certainly have to be patient until we see a
solid result.
Even though Opinion 2/13 smashed our hopes, the 47+1
Group is not starting from scratch this time. Having said that, it is evident
that this project still requires a lot of effort from everyone involved.
Let us hope that
once the marriage contract is honed, the CJEU marries the couple and the EU and
ECHR can finally change their relationship status to ‘married’.
EU accession to the ECHR: Details of the relaunched
negotiations
Stian
Øby Johansen, Associate Professor at the University of
Oslo Faculty of Law
The
first renegotiation meeting
The report of the first
renegotiation meeting – or the sixth negotiating meeting in CoE parlance,
continuing the numbering from the previous round – should be read alongside another
key document, the “Paper
by the Chair to steer the discussion at the 6th meeting of the CDDH ad hoc
group (47+1)“, which was drafted to structure the negotiations. Also,
the EU
Commission’s negotiating mandate – a heavily guarded document in the
first round of negotiations – was leaked almost simultaneously with its
approval in October 2019.
The key issues facing the negotiators
In her paper, the
Chair attempted to structure the negotiations around four “baskets” of issues:
Basket 1: EU-specific
mechanisms of the procedure before the ECtHR (co-respondent mechanism, prior
involvement of the CJEU, shared responsibility).
Basket 2: Operation of
inter-party applications and of references for an advisory opinion by the ECtHR
(ECHR article 33 & Protocol 16).
Basket 3: The principle
of mutual trust between EU Member States.
Basket 4: EU acts in the
area of the Common Foreign and Security Policy.
The Chair’s paper
also included a list of “tools” available to the negotiators, spanning from
amendments to the ECHR and the Draft Accession Agreement (DAA) to simple
clarifications of the Explanatory Report to the DAA and declarations to be made
at the signature of the DAA. The Chair’s paper then went on to analyze the
issues under each basket, identifying the relevant parts of the DAA and Opinion 2/13 for each issue, as well as
possible action by the 47+1 Group using the “tools” at their disposal.
The Chair in other
words tried to play an active role, to ensure that the discussions are focused
on the key issue. To me, this strategy seems appropriate for the complex task
at hand. Indeed, the active role of the Chair was crucial to bringing the
negotiations to a close the last time around. Then, as now, the Norwegian
delegate Tonje Meinich chaired the negotiations, and in 2019 she published an article
detailing her experiences of the first round of negotiations in The International
Journal of Human Rights.
The Chair’s paper
appears to have been fairly well received by the negotiating parties. The agenda of the
negotiation meeting was clearly drafted with the proposed “baskets” in
mind. During the negotiation meeting, though, at least two delegations
announced their intentions to raise additional issues during these
renegotiations (Meeting report, para 41). Moreover, one delegation inquired
about the possibility for an opinion by the ECtHR on the renegotiated DAA
(Meeting report, para 43).
Progress made at the sixth negotiation meeting
At the sixth
negotiation meeting, the baskets were discussed in the order they were listed
above. From the Meeting Report, it appears that the two first baskets were most
thoroughly discussed, and some progress made, while the last two baskets were
discussed in a more superficial manner.
No concrete,
written proposals for amendment of the DAA or the other draft accession
instruments appear to have been put forward during the sixth negotiation
meeting. However, the discussions generally progressed to the point that the
Chair invited concrete textual proposals for discussion during the next
(seventh) negotiation meeting.
In the following I
will point out the key highlights from the sixth negotiations under each
basket, and assess the progress made.
EU-specific mechanisms of the procedure before the ECtHR
(“Basket 1”)
An array of
sub-issues were discussed under this heading, including the so-called
co-respondent mechanism, the so-called prior involvement procedure, and the
attribution of conduct/apportionment of responsibility between the Union and
its Member States. The thread binding them all together is, according to the
CJEU, that they all carry with them the risk that the ECtHR may incidentally
have to interpret the internal division of competences between the Union and
its Member States.
For the purely
procedural mechanisms involved – co-respondent mechanism and the prior
involvement procedure – the most obvious solution would be to remove any
threshold criteria for triggering them. That is because, under the 2013 DAA,
considering whether those thresholds were met was a task for the ECtHR. Even
though the thresholds were so low that they almost amounted to a review of
whether there was abuse of process, the CJEU in Opinion 2/13 nevertheless found them to be incompatible with Union
law.
Making both the
co-respondent procedure and the prior involvement procedure unconditional rights
were discussed at the sixth negotiation meeting. With the exception of one
delegation, there appears to have been a generally positive reaction to making
the prior involvement of the CJEU an unconditional right (Meeting report, para
17). However, views were more mixed with regard to removing the threshold for
triggering the co-respondent mechanism (Meeting report, para 13-14).
In a case involving
both the Union and one or more Member States, the ECtHR’s incidental
determinations regarding attribution of conduct may obviously entail assessment
of the distribution of competences. In the negotiations leading up to the 2013
DAA this issue was extensively discussed. When white smoke finally appeared, Article
3(7) of the 2013 DAA included a nebulous clause providing for the shared
responsibility of all co-respondents (the Union and one or more Member States)
– unless the ECtHR “decides that only one of them be held responsible”. This
provision could be read as anything from a strong presumption of shared responsibility
to a carte blanche for the ECtHR to decide for itself who is
responsible.
In Opinion 2/13, the CJEU found that
article 3(7) of the 2013 DAA was incompatible with Union law merely due to the
risk that the ECtHR could avail itself of the exception to shared
responsibility (paras 229–234). Indeed, the CJEU appears to assert that even if
the provision is interpreted as a nearly insurmountable presumption, its very
existence is incompatible with Union law.
The obvious
“solution” to this objection by the CJEU is to delete the exception. In the
sixth negotiation meeting, there was some support for this option, but it was
far from unanimous (Meeting report, para 16). One delegation also objected, “as
a point of principle”, to the idea that a participant before the ECtHR could
“set the rules for how it will participate”, and thus be in a privileged
position (ibid). The Chair invited concrete drafting proposals for the next
(seventh) negotiation meeting. If I allow myself to speculate, based on
experience from the negotiations leading up to the 2013 DAA, I predict that the
differences between the “EU side” and the Non-EU CoE States will become quite
pronounced when they finally get to discussing concrete proposals.
The seemingly
tricky issue of how to deal with ECHR reservations made by an EU Member States
that is co-respondent with the Union was also discussed. Interestingly, though,
the 47+1 actually managed to reach an agreement that “such reservation would
remain valid” (Meeting report, para 15). Concrete drafting proposals to put
that agreement into action were to be discussed at the next negotiation
meeting.
Under this basket
the negotiators also discussed the need for a procedure for keeping the Union
systematically informed of cases before the ECtHR where the co-respondent
mechanism and prior involvement procedure may apply (Meeting report, para 18).
Unsurprisingly, some of them asked the obvious question: why should the ECtHR
be responsible for keeping the Union informed, and not the EU Member States?
Indeed, the EU Member States are probably better placed than the ECtHR when it
comes to assessing whether a case also raises issues of Union law. No firm
answer was provided in the sixth negotiation meeting, however. All options were
kept open, and the negotiations will return to this issue at the seventh
negotiation meeting.
Operation of inter-party applications and of references
for an advisory opinion by the ECtHR (“Basket 2”)
These two seemingly
disparate issues have in common that they could, potentially, be used by EU
Member States to violate provisions of the TFEU – notably the infamous Article
344 (Meeting report, para 20), which requires EU Member States to use the
procedures in EU law if they have disputes about EU law between them.
With regard to the
issue of inter-party applications (ECHR article 33), the CJEU held in Opinion 2/13 that “only the express
exclusion of the ECtHR’s jurisdiction under Article 33 of the ECHR over
disputes between Member States […] within the scope ratione materiae of
EU law” would be compatible with TFEU article 344 (para 213). In other words,
the mere “existence of such a possibility” – i.e. that a Member State could
launch an inter-party case in violation of Article 344 – led the CJEU to find
the 2013 DAA incompatible with that provision (Opinion 2/13, para 208).
During the sixth
negotiation meeting, there was strong opposition from some Non-EU CoE Members
against amending the ECHR to take this CJEU objection into account (Meeting
report, para 22). It appears that those states considered this – rightly, in my
view – an internal issue for the Union and its Member States. As I have argued before,
the CJEU reinterpreted TFEU Article 344 in Opinion
2/13 – establishing new and stricter requirements. Consequently, Opinion 2/13 seemingly makes it almost
impossible for the Union and its Member States to enter into international
agreements with proper dispute resolution mechanisms. Both the text of TFEU Article
344 and the preexisting CJEU case-law arguably implied that the mere existence
in an agreement of an avenue through which Member States may violate TFEU Article
344 was not problematic.
It should therefore
be no surprise that I am sympathetic to the suggestion of the representative of
the ECtHR Registry during the sixth negotiation meeting, namely that “the very
premise underlying the requirement stated by the CJEU in Opinion 2/13 that the use of Article 33 ECHR be expressly ruled out
[…] would not be compatible with Convention case-law and should perhaps be
revisited” (Meeting report, para 24). Leaving some CJEU objections to the side
in this manner, with the hope that the CJEU has changed its mind over the last
years, is obviously risky. But the risk of a potential second negative Opinion
is worth taking, in my view, rather than going too far in the direction of
giving the Union special treatment.
Some potential
“solutions” were discussed, including the suspension of inter-party ECtHR
proceedings until the CJEU had determined whether they violated TFEU Article
344 or not (Meeting report, para 26). However, all such solutions fall short of
what the CJEU actually required – and thus also carry with them a risk of a
second negative Opinion.
The Chair ended the
discussions on TFEU Article 344 by concluding that “no delegation had spoken
against the general principle that inter-party-applications brought before the
ECtHR in violation of EU law were undesirable and should be avoided” (Meeting
report, para 27). She also noted that there as “sufficient appetite” for
further exploring solutions based on the suspension of ECtHR proceedings
(ibid).
With regard
to requests by national courts for advisory opinions by the ECtHR under
ECHR Protocol 16, the CJEU objected in Opinion
2/13 that domestic courts could circumvent the preliminary reference
procedure as regards EU law under TFEU Article 267 (para 198). Reading this
part of Opinion 2/13 closely, one see
that what the CJEU seems to fear here is not that it wouldn’t be involved
before the ECtHR gives an advisory opinion, but rather that a request for an
advisory opinion would trigger the 2013 DAA prior involvement procedure. This
means that the case is brought, by a domestic court, before the CJEU, using a
different procedure than TFEU Article 267.
This objection was
always somewhat puzzling. First, it is difficult to understand why the exact
basis of the CJEU’s jurisdiction is – TFEU article 267 or the DAA prior
involvement procedure. The CJEU never says clearly what the problem would be.
Perhaps it is simply the fact that the prior involvement was supposed to happen
using an expedited procedure (2013 DAA
article 3(6) and Explanatory Report para 69) – thus potentially creating a
“fast track” to a CJEU opinion in cases raising issues of Union law and
fundamental rights? Second, the CJEU does not seem to trust that its Member
States and their domestic courts will play by the rules. This lack of trust is
also evident in the CJEU’s above-discussed objections relating to TFEU Article
344 issue.
At the sixth
negotiation meeting, little progress was made. The 47+1 Group only seems to
have agreed on two preliminary points. First, that the CJEU’s objection
regarding ECHR Protocol 16 were not as strongly formulated than its objection
concerning TFEU Article 344. Second, that the current wording of paragraph 66
of the DAA
Explanatory Report “state that the application of the prior
involvement-procedure would presuppose an application which the co-respondent
mechanism applies”. Exactly what this latter point of agreement means or
achieves remains somewhat of a mystery, though. But perhaps this agreement
implicitly presupposes that the co-respondent mechanism does not apply to requests
for advisory opinion under Protocol 16, since the 2013 DAA provisions on the
co-respondent mechanism (Article 3) consistently uses the term “application”?
However, not applying the co-respondent mechanism in Protocol 16 cases could
lead to the “Basket 1” risk that the ECtHR would have to incidentally determine
the division of competences between the Union and a Member State.
Is there a way out
of these dilemmas? In my view, there are at least two. Firstly, the Protocol 16
issue is an obvious candidate for EU-internal solutions. A drastic, but
effective, solution would be for the Union and the EU Member States to agree
among themselves not to ratify Protocol 16 (or to withdraw from it, for those
who have already ratified). Less drastic options along the same lines may also
be possible.
Secondly, there is
always the option of not making substantive changes to the 2013 DAA, instead
banking on the CJEU to have changed its mind. Given the quite distrustful
approach the CJEU had to its Member States concerning the issues under “Basket
2” in Opinion 2/13, this might be a
possible, and perhaps even preferable, option. But there is no harm in
thoroughly scrutinizing other potential solutions.
The principle of mutual trust between EU Member States
(“Basket 3”)
Taken to its
extreme, the Union law principle of mutual trust may be at variance with the
ECHR system. That is because that principle, according to the CJEU in Opinion 2/13 in the policy Area of
Freedom, Security and Justice (AFSJ) requires EU Member States to “presume that
fundamental rights have been observed by other Member States” (para 198,
emphasis added). An EU member state may thus, save for in exceptional cases,
“check whether that other Member State has actually, in a specific case,
observed […] fundamental rights” (ibid). In contrast, the ECHR’s non-refoulment obligations
did not distinguish between whether the High Contracting Parties involved are
members of the same economic integration organization or not.
Since 2014, both
courts have climbed down from their horses somewhat.
In Avotiņš (which I discussed
here),
the ECtHR Grand Chamber recognized the “importance of the mutual recognition
mechanisms” for Union law (para 113). That recognition of the principle’s
importance was, however, immediately followed up by the ECtHR’s observation
that “the aim of effectiveness pursued by some of the methods used [in the
AFSJ, such as mutual trust,] results in the review of the observance of
fundamental rights being tightly regulated or even limited” (para 114).
For its part, the
CJEU has since 2014 significantly broadened the exceptions to mutual trust when
it comes to fundamental rights, notably in the cases of Petruhhin (discussed
here)
and Jawo.
It may
not imply blind trust anymore, but exceptions to mutual trust still remain,
well, exceptional.
During the sixth
negotiating meeting the 47+1 group barely scratched the surface of this basket,
laconically noting the “increased convergence” between the case-law of the two
courts, and tasking the CoE secretariat with preparing a compilation of the
case-law for the next (seventh) negotiation meeting. (this
compilation was later published on the CoE accession website.)
EU acts in the area of the Common Foreign and Security
Policy (“Basket 4”)
The 2013 DAA would
have granted the ECtHR jurisdiction over conduct carried out under the auspices
of the EU’s Common Foreign and Security Policy (CFSP) – a policy that is at
least partially outside the CJEU’s jurisdiction. This followed from the simple
fact that the 2013 DAA did not distinguish between policy areas. Indeed, the
principle that the EU should accede to the ECHR on equal footing with other
High Contracting Parties seems to demand such a result. No party to the ECHR is
entitled to exclude entire areas of policy from the ECtHR’s jurisdiction.
In a move Steve
Peers aptly termed “judicial politics of the playground”, the CJEU held in Opinion 2/13 that since it did not have
jurisdiction over (parts of) the CFSP, neither could any other international
court. By allowing the ECtHR to adjudicate cases arising from CFSP-related
conduct the CJEU consequently asserted that the 2013 DAA “faile[d] to have
regard to the specific characteristics of EU law with regard to […] judicial
review […] in CFSP matters” (Opinion 2/13,
para 257).
Finding a way
forward through this obstacle, without undermining the ECHR system, is
obviously challenging. While the CJEU’s case-law on the scope of the CFSP
jurisdictional carve-out has evolved since 2014 (see this discussion
of the most recent relevant judgment, with further links), it remains that
certain CFSP acts – including acts that may violate human rights – are covered
by the carve-out (see e.g. Johansen 2020, Ch 4,
particularly at 142–144). The DAA thus hasn’t (yet) been saved by an arguably
expanding CJEU jurisdiction over CFSP matters.
There was little
progress in finding a solution in the sixth negotiating meeting. Familiar
suggestions of including a “clear attribution clause” was mooted (Meeting
report, paras 37–38). However, it is unclear what an attribution clause would
achieve, since the CJEU’s objections in Opinion
2/13 related to its lack of jurisdiction over CFSP acts. Automatically
attributing CFSP acts to the Member States – either exclusively or jointly with
the Union – for the purposes of the ECHR does not appear to have any effect on
this issue. It would not remove the CFSP from the ECtHR’s jurisdiction, and it
would obviously not widen the scope of the CJEU’s jurisdiction.
In the end, the
Chair reached the lethargic conclusion that there was a “common goal by the
delegations […] that, in order to avoid ‘black holes’ in the European human
rights protection, the Convention system should be able to accommodate all acts
in the CFSP area. The question was ultimately to find that appropriate way how
to get there.” (Meeting report, para 39.)
Further issues raised
Towards the end of
the sixth negotiation meeting, some delegations brought up additional issues
that were not included in the four “baskets”.
First, the Chair
and the CoE Secretariat brought up the issue of the relationship between
the mimimum standards clauses: ECHR article 53 and the EU Charter of
Fundamental Rights article 53 (Meeting report, para 40). To overcome the
CJEU’s worries in Opinion 2/13
concerning the coordination of these two provisions, it was preliminarily
suggested to clarify their relationship in the Explanatory Report to the DAA.
Second, two
delegations pointed out that there had been changes in the CoE since the
adoption of the 2013 DAA, and that articles 6, 7, and 8 of the DAA (dealing
with the participation of the Union in CoE organs and its budgetary
contribution to the CoE) therefore had to be revised to reflect those
changes (Meeting report, para 41). These delegations also announced that they
would bring up further issues, as already mentioned.
Finally, one
delegation inquired about the possibility if asking the ECtHR for an
opinion on the renegotiated DAA, as alluded to above (Meeting report, para 43).
Asking the ECtHR for such an opinion would in principle be possible under ECHR
article 47. In my view, doing so would probably also be a wise move. A positive
opinion by the ECtHR may potentially influence the CJEU when it will,
inevitably, be asked to give its opinion on the renegotiated DAA. Moreover,
waiting for an ECtHR opinion is unlikely to delay the process much. It might
even be possible to ask both courts for an opinion at more-or-less the same
time. If so, I would expect that the ECtHR will be able to deliver an opinion
sooner than the CJEU. Last time the ECtHR
was asked to give an opinion under ECHR article 47, it only took about six
months to do so.
Conclusion
While the
negotiations have no doubt started, it is already apparent that they will take
time. Several of the CJEU’s objections in Opinion
2/13 concern issues that were extremely delicate in the negotiations of the
2013 DAA. From the perspective of the non-EU Member States of the CoE, the
negotiations are now essentially being reopened to deal with mostly internal
affairs between the EU and its Member States. This is a recurrent theme in EU
external relations: the externalization of issues that, at least in my view,
should be dealt with internally.
Against this
background, the negotiations will likely be quite difficult. Hopefully,
however, the obstacles can nevertheless be overcome without undermining the
ECHR system. If not, there is only one way forward: amending EU primary law to
neutralize the effects of Opinion 2/13.
The
second renegotiation meeting
Some progress was
made at the meeting of 24–26 November 2020 (which I will refer to as the 7th
meeting from the start of talks), but from reading the meeting report
it is becoming increasingly clear that no immediate breakthroughs are in sight.
The following briefly
summarizes and takes stock of the progress made. I begin by listing the issues
that were not dealt with at all during the 7th meeting, and then turn to the
issues which were the subject of negotiations at the 7th meeting. Finally, I
will say a couple of words about other business at the 7th meeting, notably the
exchange of views with representatives of civil society.
Issues deferred to later meetings
During the meeting,
there was only time to discuss issues relating to the first two of the four baskets
defined above. The last two, and arguably the most difficult ones – mutual trust
between EU member states (“Basket 3”) and the situation of EU acts in the CFSP
area falling outside the CJEU’s jurisdiction (“Basket 4”) – were not discussed
at all.
No particular
explanation was given for not discussing issues falling under “Baskets” 3 and
4, but I guess there was simply a lack of time. The meeting report states that
the 47+1 group will get back to the issue at its next (8th) meeting.
Issues discussed at the 7th meeting
Since the 6th
meeting, the EU side had provided concrete proposals concerning both “Baskets”
1 and 2. These two therefore took center stage at the 7th meeting.
The exact proposals
themselves are, sadly, not publicly available. Judging from the list of working
documents appended to the meeting report, the document in question is probably
the “Negotiation Document submitted by the European Union on 2 November 2020”,
which is labeled as “restricted”. Due to the lack of insight into the exact
proposal, a certain amount of (qualified) guesswork is necessary when analyzing
the meeting report.
“BASKET 1”: EU-SPECIFIC MECHANISMS OF THE PROCEDURE
BEFORE THE ECTHR
The 2013 DAA,
article 3(2), envisaged that the Union could join a case against a Member State
as “co-respondent”, but only if certain conditions were met. Crucial among
these conditions was whether it “appears” that the allegations of the
complainant calls into question the ECHR compatibility of the Union’s
constituent treaties. The ECtHR was to be the judge of whether it was
“plausible” that this low threshold criterion (“appears”) was met, see 2013 DAA
article 3(5).
In Opinion
2/13, the CJEU found this to be unacceptable. That was because it could
allow the ECtHR to decide on – albeit as a mere procedural and preliminary
matter, and using an extremely low threshold – the distribution of competences
between the Union and its Member States (Opinion
2/13, para 231).
To overcome this
issue, the EU proposal discussed at the 7th meeting of the 47+1 group was one
foreseen long ago as a “safe” solution: that the Union is given an unilateral
right to join proceedings as co-respondent. It was also suggested that the
Union be afforded a similar unilateral right to later terminate its
participation as co-respondent. That solution was not chosen during the 2013
DAA negotiations, since, if I remember correctly, it was rejected by non-EU CoE
Member States.
The same group of
states also appear to be skeptical this time around, although their position
appears to have been softened somewhat following Opinion 2/13. Some delegations suggested moving the criteria to
other places in the draft accession instruments (i.e. away from the DAA
itself), but other still preferred to keep then in the DAA. In this connection,
the difference between the EU proposal and the 2013 DAA solution was
“discussed”, but no particular decisions appear to have been taken.
Some other, less
significant proposals relating to the co-respondent mechanism were also
discussed, such as how the Union should be informed of upcoming cases and
responsibility issues when EU Member States have reservations against ECHR
provisions. Some progress was made on these issues, but again not much is concrete.
Under this baskets
an EU proposal for amending DAA article 3(6) on the prior involvement procedure
was also discussed. The “problem”, as framed by the CJEU in Opinion 2/13, is virtually identical to
that which affects the co-respondent mechanism, since under the 2013 DAA the
inclusion of the Union as co-respondent was a trigger for the prior involvement
procedure. It is unclear from the meeting report what the EU proposal in this
connection was, but it likely suggested clarifying that the ECtHR would not be
the judge of whether the CJEU had already assessed the ECHR compatibility of
the (EU law-related) measure in question. The report does not say much about
the discussions, other than that the ECtHR registry was happy to not be the one
making such determinations. No opposition against the proposal was noted.
Although we don’t know fore sure, perhaps this was the point where most
progress was made.
In sum, the 7th
negotiation meeting did not result in much progress under “Basket 1”, although
one should not underestimate the importance of concrete proposals hitting the
table. Concrete proposals tend to frame and structure negotiations, and makes
it necessary for the opposing sides to take a stance. This will hopefully lead
to more progress down the road.
“BASKET 2”: OPERATION OF INTER-PARTY APPLICATIONS AND OF
REFERENCES FOR AN ADVISORY OPINION BY THE ECTHR
On the issue of
inter-party applications, the EU proposal appears to have been a clearly
formulated exclusion of inter-party cases between EU Member States. In other
words, just what the CJEU ordered in Opinion
2/13.
The ensuing
discussion appears to have been both frank and brief. “Some delegations
suggested that this was rather a matter related to internal EU matters”, as the
meeting report (para 13) laconically states. As noted above, I completely agree
with the “some delegations”, but at the same time Opinion 2/13 does not appear to leave much wiggle room in this
connection. Either inter-party cases between EU Member States have to be completely
excluded, or one must bet that the CJEU has changed its mind.
The 47+1 group left
the discussions of this issue here, and agreed to revert to it at its next
meeting.
A related proposal
from the EU would amend the DAA to make it possible for the Union to ask the
ECtHR to suspend inter-party applications between EU member states and/or
requests for advisory opinions by the ECtHR (protocol 16). Some delegations had
reservations of various kinds to this proposal as well, and it was left for
further discussion at the next meeting.
Finally, the 47+1
group discussed an EU proposal on the coordination of ECHR article 53 and the
Charter of Fundamental Rights article 53. The exact contents of the proposal
are unclear to the readers of the meeting report. There was some support for
it, as long as it was clear that the minimum protection enshrined in ECHR
article 53 was maintained. Some delegations objected to a provision in the DAA
itself concerning this, and suggested that it was a better fit for the
explanatory report.
The chair concluded
that there was some common understanding on the substance of this final
proposal, and suggested that the group should discuss a refined wording during
the next negotiation meeting. Again we see progress in connection with more technical
matters requiring clarification, rather than any real amendments to the 2013
DAA.
“BASKET 5”: EU PARTICIPATION IN COE ORGANS
In addition to the
four baskets of issues identified by the chair before the 6th negotiation
meeting, a new basket of issues was added to the list: articles 6–8 of the
(2013) DAA, dealing with EU participation in CoE organs and EU contributions to
the financing of the ECtHR’s work.
There were some
preliminary discussions of these issues at the 7th negotiation meeting. While there
was no final outcomes on any of the issues raised under this basket, the
discussions appear to mostly have concerned fine-tuning and updates to the DAA
and explanatory report in light of recent developments within the Council of
Europe. It seems unlikely that these issues will derail the negotiations.
Other business at the 7th meeting
Among the other
business of the 7th meeting was an exchange of views with civil society. An
array of human rights organizations took part, including Amnesty International,
the International Commission of Jurists, and the European Network of National
Human Rights Institutions.
The summary of the
civil society contributions in the meeting report probably does not do justice
to all the views expressed by civil society. Still, when reading the summary, I
was struck by how lofty the contributions of civil society seems to have been.
Instead of offering more concrete guidance – which could have the potential to
break potential deadlocks – most of civil society seems to have used their
brief time on stage to express general support for the accession project as
such. In my view, this is not where the problems lie.
As Opinion 2/13 so well illustrates, the
only opponent of ECHR accession is the CJEU. All others – all EU Member States,
all the institutions, and the non-EU CoE Member States – unanimously agreed on
the 2013 DAA. And their positions have not shifted. That makes this
(re-)negotiation process an unique absurdity: all those at the negotiation
table are in agreement on a text, which they must now adapt to meet the (still
somewhat unclear) preferences of a third party, the CJEU.
Next meetings
Two further
negotiation meetings of the 47+1 group have already been penciled in for 2021:
8th negotiation
meeting (2–4 February 2012)
9th negotiation
meeting (23–25 March 2021)
Do note that these
dates are subject to confirmation in light of the ongoing COVID pandemic.
Barnard & Peers: chapter 8
Photo credit: www.coe.int
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