Saturday, 30 January 2021

Negotiations for EU accession to the ECHR relaunched - overview and analysis



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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