tag:blogger.com,1999:blog-8704899696538705849.post6994053267492025935..comments2024-03-28T02:32:17.979-07:00Comments on EU Law Analysis: The CJEU and the EU’s accession to the ECHR: a clear and present danger to human rights protection Steve Peershttp://www.blogger.com/profile/05869161329197244113noreply@blogger.comBlogger37125tag:blogger.com,1999:blog-8704899696538705849.post-18715680283953892952023-03-30T21:25:28.052-07:002023-03-30T21:25:28.052-07:00This comment has been removed by a blog administrator.Tỷ lệ cá cược Macaohttps://www.blogger.com/profile/08330962561777056732noreply@blogger.comtag:blogger.com,1999:blog-8704899696538705849.post-46287480002002178722021-10-13T17:39:57.835-07:002021-10-13T17:39:57.835-07:00This comment has been removed by a blog administrator.Anonymoushttps://www.blogger.com/profile/04298161332717485516noreply@blogger.comtag:blogger.com,1999:blog-8704899696538705849.post-4899212334409601182017-01-12T04:48:40.114-08:002017-01-12T04:48:40.114-08:00Better to have a Treaty amendment that simply decl...Better to have a Treaty amendment that simply declares a specific draft accession treaty compatible with EU law. Steve Peershttps://www.blogger.com/profile/05869161329197244113noreply@blogger.comtag:blogger.com,1999:blog-8704899696538705849.post-11184635364577966952017-01-12T04:44:55.188-08:002017-01-12T04:44:55.188-08:00If they refuse to play by their own invented judic...If they refuse to play by their own invented judicial rules, then a Treaty amendment that would say: the CJUE does not have competence to rule on the compatibility of the accession to the ECHR - it is really desirable and perhaps the only hope. It looks like the EU judges do not want to cooperate with the ECHR under the terms that the political will of the MSs is to determine. This reminds me of one Lithuanian President that sent the ratification of its country accession to the ECHR to its national constitutional court, in order for them to check if the accession of Lithuania to the Convention is constitutionalIsaachttp://eprint.ebuad.edu.ngnoreply@blogger.comtag:blogger.com,1999:blog-8704899696538705849.post-36327177951334809432016-05-14T03:00:27.958-07:002016-05-14T03:00:27.958-07:00Thanks for your question. Yes, the two statements ...Thanks for your question. Yes, the two statements probably amount to saying the same thing in different ways.Steve Peershttps://www.blogger.com/profile/05869161329197244113noreply@blogger.comtag:blogger.com,1999:blog-8704899696538705849.post-62100247269087151112016-05-14T02:48:57.962-07:002016-05-14T02:48:57.962-07:00Professor Peers,
"The Court understands auto...Professor Peers,<br /><br />"The Court understands autonomy to signify that the EU may be a construction of international law, but that in its internal order its own rules displace the principles and mechanisms of international law." (http://europeanlawblog.eu/?p=2731). Does this refer to what you stated in this article: that the Court highlighted in its opinion that 'the EU system is sui generis, i.e. a class by itself'? Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-8704899696538705849.post-2628297405444032032015-02-19T01:01:00.979-08:002015-02-19T01:01:00.979-08:00Thanks a lot for your quick answer, it clarifies t...Thanks a lot for your quick answer, it clarifies things up, I won't forget to mention it during the presentation <br /><br />Manishnoreply@blogger.comtag:blogger.com,1999:blog-8704899696538705849.post-26862056687653498122015-02-18T13:05:42.645-08:002015-02-18T13:05:42.645-08:00The answer is that it is up to EU law and the CJEU...The answer is that it is up to EU law and the CJEU to decide on the division of power between the EU and its Member States, not an external court. Yes, it's an issue of interpretation of the ECHR as well, it's very hard to separate the two. Steve Peershttps://www.blogger.com/profile/05869161329197244113noreply@blogger.comtag:blogger.com,1999:blog-8704899696538705849.post-29854715328612427702015-02-18T12:47:55.495-08:002015-02-18T12:47:55.495-08:00Professor Peers,
I was given your article to comm...Professor Peers,<br /><br />I was given your article to comment for my EU course, but I didn't get one point, you wrote<br /><br />"and the ECtHR should not have the power to allocate responsibility for breach of the ECHR between the EU and Member States, since only the CJEU can rule on EU law."<br /><br />Why can't the ECtHR allocate responsibilities? It concerns a breach of the ECHR not EU law, so it does fall, in the case of an accession, under the jurisdiction of the ECtHR, I can't understand why the ECJ should have its say in the matterAnonymousnoreply@blogger.comtag:blogger.com,1999:blog-8704899696538705849.post-4107141282731437892015-02-06T02:29:04.705-08:002015-02-06T02:29:04.705-08:00This is a great article,it has really brought abou...This is a great article,it has really brought about an eye opener.The so called CJEU & ECtHR has come as a deceit to many,i really appreciate your post.Uba Babshttp://www.fuoye.edu.ngnoreply@blogger.comtag:blogger.com,1999:blog-8704899696538705849.post-82739568479726949692014-12-22T11:02:52.028-08:002014-12-22T11:02:52.028-08:00I think this approach is too legalistic. Ultimatel...I think this approach is too legalistic. Ultimately the argument that national values ought to prevail over the ECtHR is based on the principle of constitutional patriotism, at least at the level of popular legitimacy. Even as a legal argument, the CJEU's ruling fails to take account of the EU status as a non - State as well as the existence of many references to human rights and the ECHR in the treaty. While most authors of national constitutions would probably argue that they intended them to prevail over the ECtHR in the event of conflict did the drafters of the Treaty really intend the same? And a crucial difference between States and the CJEU is that most governments thought that signing the ECHR was compatible with their national constitution as a starting point. Any conflicts between ECtHR rulings and the national constitution could be resolved by not applying the relevant rulings. Why couldn't the CJEU take that approach?Steve Peershttps://www.blogger.com/profile/05869161329197244113noreply@blogger.comtag:blogger.com,1999:blog-8704899696538705849.post-51630665159071971142014-12-22T09:13:28.126-08:002014-12-22T09:13:28.126-08:001) we agree to disagree :)
2) supremacy of EU law ...1) we agree to disagree :)<br />2) supremacy of EU law for the EU system is the equivalent of the hard core of constitutional values that some national Courts defend against EU (and ECHR) - it is not a matter of "legitimacy" or "patriotism" but of using a "lower rank" instrument (accession treaty) to interfere with a treaty rule: the identical issue is for States who have a "rigid" constitution (alike the Treaty binds the CIEU): the accession treaty to ECHR or EU has a "lower rank" than the Constitution itself, so that the national Constitutional Court cannot accept it can derogate to a higher ranking rule - usually they will find a way to reconcile the "construction" of the two set of rules, but if they are requested of an opinion on the point of principle, they will always say that in the very end, if all other paths have been explored to avoid the conflict, eventually it is the Constitution and neither ECHR nor EUwhich prevails. Incidentally, this approach can be beneficial: it has been used recently by the Italian Constitutional Court to reject the applicability in Italy of the ICJ decision on Germany immunity, being it against the "hard cre values" of the Constitution, despite being Italy boubd - as a matter of international law and treaty obligations - to apply the ICJ decision.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-8704899696538705849.post-71529498769033545842014-12-21T13:37:57.423-08:002014-12-21T13:37:57.423-08:00Also, Treaty amendments are difficult to achieve -...Also, Treaty amendments are difficult to achieve - it took three goes before we had one on ECHR accession. Did the Lithuanian court ruling address any interesting issues? Steve Peershttps://www.blogger.com/profile/05869161329197244113noreply@blogger.comtag:blogger.com,1999:blog-8704899696538705849.post-72125007268435050912014-12-21T13:35:05.430-08:002014-12-21T13:35:05.430-08:00The CJEU has ruled on its own cases, at least wher...The CJEU has ruled on its own cases, at least where they involved staff disputes. The CJEU judgment in Case C-50/12 doesn't concern a case against the CJEU and didn't rule that all appeals from the General Court are inadmissible; it just rejected an appeal from that Court on the merits. It's hard to see how a citizen would have standing to bring a direct action against the Court on this issue, since the standing rules in Art 263 TFEU wouldn't be satisfied. Steve Peershttps://www.blogger.com/profile/05869161329197244113noreply@blogger.comtag:blogger.com,1999:blog-8704899696538705849.post-1827852003726262622014-12-21T12:45:02.122-08:002014-12-21T12:45:02.122-08:00Could CJUE be judge in its own trial? Nemo iudex i...Could CJUE be judge in its own trial? Nemo iudex in cause sua. Plus, from C-50/12 does not result that there is an appeal to the Court of Justice, after the case is decided by the General Court. I would really want to see one of the EU institutions going against the Court for this and using the ratio from C-50/12. And I even wonder if I would have a locus standi, as a simple EU citizen.<br /><br />Best regards, Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-8704899696538705849.post-57315198194205377262014-12-21T12:35:55.067-08:002014-12-21T12:35:55.067-08:00If they refuse to play by their own invented judic...If they refuse to play by their own invented judicial rules, then a Treaty amendment that would say: the CJUE does not have competence to rule on the compatibility of the accession to the ECHR - it is really desirable and perhaps the only hope. It looks like the EU judges do not want to cooperate with the ECHR under the terms that the political will of the MSs is to determine. This reminds me of one Lithuanian President that sent the ratification of its country accession to the ECHR to its national constitutional court, in order for them to check if the accession of Lithuania to the Convention is constitutional :)) Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-8704899696538705849.post-78425842062211352442014-12-21T08:59:04.410-08:002014-12-21T08:59:04.410-08:00In hindsight, maybe it was a mistake to ask the CJ...In hindsight, maybe it was a mistake to ask the CJEU its opinion this time. But now it has given its opinion, the draft accession treaty can't be signed unless it is amended to meet the CJEU's concerns, or the EU Treaties are amended again.Steve Peershttps://www.blogger.com/profile/05869161329197244113noreply@blogger.comtag:blogger.com,1999:blog-8704899696538705849.post-1974135706413868822014-12-21T08:41:09.676-08:002014-12-21T08:41:09.676-08:00Thank you for this analysis Prof Peers.
It seems...Thank you for this analysis Prof Peers. <br /><br />It seems the CJEU is the only obstacle on the way towards accession, as the other EU institutions agree on that. Is it not possible not to ask the CJEU an opinion in the future? Article 218(11) TFEU suggests that such an opinion “may” be obtained, not “shall”. Niko Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-8704899696538705849.post-23731501929549768872014-12-21T03:54:03.241-08:002014-12-21T03:54:03.241-08:001) You're not going to convince me on this. Se...1) You're not going to convince me on this. Seriously, why should the Treaty provision ruling out CJEU jurisdiction on CFSP be taken to rule out ECtHR jurisdiction on the same issue, when the Treaty is silent on that point, refers frequently to the ECHR, human rights and the rule of law and provides expressly for ECHR accession, and when the exclusion of ECtHR jurisdiction is anathema to the basic principles of international human rights law? <br /><br />2) Yes, the Court's position on JHA is similar to national judicial and political objections to the ECtHR rulings. That's what I was getting at by my reference to the Conservative party position paper on the ECtHR. But as inarticulate as that paper is, it touches on a legitimate issue - to what extent should an international human rights court overrule national courts and legislatures? Yet to make this argument at EU level, you have to appeal to national constitutional patriotism, whether that takes a judicial or a parliamentary form. The CJEU doesn't attempt to make such an argument. It simply says that the supremacy of EU law (its own creation, not accepted as such by many national courts and legislatures) would be threatened. The rejection of the ECHR in the terms set out by the CJEU can't be based simply on the kind of thin legalism that the judges (and you) use here; given the primordial role of human rights in the EU legal order, only a much more fundamental normative argument about the legitimacy of the EU legal order as a whole could have a chance of winning the argument. It's hard to square the CJEU's ECHR ruling with its judgment in Kadi, as a matter of principle - the only point in common is that the CJEU thinks that no-one else can rule on human rights issues (as they affect the EU) as well as itself. You can't found political legitimacy on judicial vanity. Steve Peershttps://www.blogger.com/profile/05869161329197244113noreply@blogger.comtag:blogger.com,1999:blog-8704899696538705849.post-61677645950689478442014-12-21T03:22:04.570-08:002014-12-21T03:22:04.570-08:001) the Court argument is different: it goes "...1) the Court argument is different: it goes "If the Treaty has a rule on whether a matter is subjuct to judicial review or not, you can't take the issue outside the Treaty" - it stems from EU being not a mere Intl org (where your argument would apply) and it is more like a constitutional limitation (i.e. To modify the rule you have to change the Trety, you can't do that with an intl agreement).<br />2) apart from the fact that CJEU stated that even before EU exercising its power, the MS must still act - when they have the power to do so - in a matter which does not jeopardise or prejudice the EU, so that the mere "potential" competence does have an effect, limitating the MS action, the parallel is that a negative rule is still a rule, so that the existence of the rule makes the matter "regulated": <br />- as for the JHA, I must say that whilst I agree with you on the merits, I can see the issue raised by the CJEU, since it is quite the same raised by some national Constitutional Courts, i.e. that ECHR standards may be in conflict with national standards and formally speaking the ECHR is a treaty and therefore has a lower rank that national Constititions, and the decision of the ECHR on the interpretation of such standards within the context of the Convention does not bind the national Constitutional Court in interpreting the national Constitution standards: e.g. The Italian constitutional Court has upheld national rules which had been judged by the ECHR as contrary to the Convention, arguing that such rules nevertheless protected a different constitutional principle of the national constitution and the convention could not modify the constitution, beng it a lower rank act - so from a theoretical point of view the CJEU adopts the same approach: the ultimate decision on whether a EU act is in compliance with EU law must be taken within EU only (to make a parallel, think of the CJEU approach for WTO decisions: despite an action being contrary to WTO as decided by the appellate body, nonetheless individuals can use such illegality as a ground to void the action within the EU system)<br />Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-8704899696538705849.post-11432238360829878612014-12-20T10:43:31.434-08:002014-12-20T10:43:31.434-08:00Nice argument, but the General Court would be relu...Nice argument, but the General Court would be reluctant to defy the CJEU, and if it did, the CJEU could appeal - to itself. Steve Peershttps://www.blogger.com/profile/05869161329197244113noreply@blogger.comtag:blogger.com,1999:blog-8704899696538705849.post-58636389174136783112014-12-20T10:42:44.105-08:002014-12-20T10:42:44.105-08:00I still don't agree with this argument, for al...I still don't agree with this argument, for all the reasons set out above. And now that Advocate-General Kokott's view is released, I see that she didn't agree with it either. If you think about it, the argument that 'if an EU institution has no power to do this, it's therefore a matter of EU law' is not only self-evidently contradictory, it's dangerous in competence terms. Would it mean that where the EU hasn't got any competence to act, or has shared competence but hasn't exercised it, Member States are prevented from acting? That line of argument contradicts the Pringle judgment. Steve Peershttps://www.blogger.com/profile/05869161329197244113noreply@blogger.comtag:blogger.com,1999:blog-8704899696538705849.post-63874699314514632252014-12-20T06:50:24.612-08:002014-12-20T06:50:24.612-08:00I wonder if the Court of Justice could be sued at ...I wonder if the Court of Justice could be sued at the General Court for breach of its obligation under article 6 (2) TUE, namely the obligation to support the accession to the ECHR as the Court is also an EU institution to which article 6(2) is opposable. For this case scenario, see mutatis mutandis C-50/12 P, EU:C:2013:771 where the Court of Justice said that damages can be obtained when the General Court breaches a primary EU law obligation, namely article 47 of the Charter. <br /><br />Could worth the try just to see what the judges have to say in relation to what institutional obligation could article 6 (2) impose on them because I really doubt that they can free ride against the perfect obligation imposed on the EU to join the ECHR.<br /><br />Best regards, Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-8704899696538705849.post-20012067318236310992014-12-20T06:49:07.215-08:002014-12-20T06:49:07.215-08:00Just to focus on the CFSP issue, the CJEU argument...Just to focus on the CFSP issue, the CJEU argument is not the draft affecting its own jurisdiction (since CJEU does not have it), but that the draft regulates a matter (i.e. Judicial review of CFSP) which falls within the Treaty i.e. A matter which can be regulated only by amending the Treaty and not by a separate international agreement - the rationale is that the fact that the treaty says CJEU does not have jurisdiction on CFSP does not mean that MS or the Institutions are free to confer jurisdiction on such matters by using a procedure other than the Treaty amendment; i.e. the negative clause on CFSP judicial review makes the issue nonetheless a matter of EU law, so the MS are not free to agree on the issue 'externally' and the Institution cannot use a lower instrument (accession treaty) to change the treaty. Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-8704899696538705849.post-47080594075834844042014-12-19T09:17:39.770-08:002014-12-19T09:17:39.770-08:00I don't think the stalemate could easily have ...I don't think the stalemate could easily have been avoided, as I don't believe that the content of the Court's opinion was so self-evident, at least not to the public (there were perhaps broad hints being dropped in private though). I can live with the current system of human rights protection, but I think there is peril in what the CJEU demands re the ECHR. If the ECtHR denounces the CJEU's position, I don't think that would move the EU towards accession, just the reverse. Why would the Full Court of the CJEU then back off the position that it's taken? Such a judgment of the ECtHR would be valuable for precisely the opposite reason - because it would prevent EU accession to the ECHR, which is now imperative for the reasons I set out in the blog post. There's a risk, though, that the ECtHR might instead decide to defer to the CJEU. That would raise a realistic (but horrific) chance of EU accession to the ECHR on the CJEU's terms. Is it worth the gamble? Would the ECtHR advisory jurisdiction even be applicable? Steve Peershttps://www.blogger.com/profile/05869161329197244113noreply@blogger.com