Protecting the right to a nationality for children of same-sex couples in the EU – A key issue before the CJEU in V.M.A. v Stolichna Obsthina (C-490/20)

 

Patrícia Cabral, Legal Policy Officer, European Network on Statelessness*

The enjoyment of LGBTIQ* rights varies across Europe, including the recognition of same-sex partnerships or marriages and the recognition of legal parentage between children and those who raise them as parents – regardless of biology, gender or sexual orientation. As a result, rainbow families in Europe (families where a child has at least one parent who identifies themselves as lesbian, gay, bisexual, trans, intersex or queer) can face problems with recognition of civil status, birth registration and access to birth certificates, leaving some children in these families either stateless or at risk of statelessness.

Such cases have occurred across several countries in Europe and reflect a wider concerning trend within the EU, where LGBTIQ*-related discriminatory laws and practices by Member States impact on the child’s right to a nationality and their access to EU citizenship. The Court of Justice of the European Union (CJEU) will now have an opportunity to address this issue in a pending case concerning a child born to same-sex parents in Spain.

The case before the CJEU

The case before the CJEU, V.M.A. v Stolichna Obsthina, Rayon ‘Pancharevo’ (C-490/20), concerns a child born in Spain, to a British mother and a Bulgarian mother, who had entered into a civil marriage in the UK before the birth of the child. Spain issued a birth certificate, which recorded both mothers as the child’s parents, but which does not specify whether one of the women is the biological mother. The Bulgarian mother subsequently applied for the issuance of a birth certificate for the child in Bulgaria. The Bulgarian authorities refused to issue a birth certificate, on the grounds that no evidence was provided about the child’s parentage with respect to her biological mother, and that the registration of a birth certificate with two female parents was contrary to public policy, as same-sex marriages are not permitted in Bulgaria.

One of the questions asked by the domestic court to the CJEU is whether the Bulgarian authorities can refuse to issue a birth certificate on the grounds that the applicant refuses to provide information on who is the biological mother. The CJEU is also asked to consider how to strike a balance between the national and constitutional identity of the Member States (protected by Article 4(2) TEU) on the one hand, and the right to respect for private and family life and the best interests of the child on the other (Articles 7 and 24(2) of the EU Charter of Fundamental Rights).

The domestic court noted that the refusal to issue a birth certificate by Bulgaria constitutes an obstacle to the issuance of identity documents and may impede the exercise of the child’s rights as an EU citizen, asking the CJEU whether this affects the interpretation of EU law. Even though it recognises that without a birth certificate the child would be unable to acquire identity documents and exercise EU citizenship rights, the domestic court does not explicitly address the impact that this may have on the child’s right to a nationality and the risk of statelessness in its request for a preliminary ruling.

In the request for a preliminary ruling, the domestic court assumes that the child would be entitled to British nationality, considering the impact that Brexit would have in the exercise of her rights as an EU citizen. However, new evidence has subsequently been submitted to the court that the UK has since refused nationality to the child (based on special provisions that do not allow a parent who acquired British nationality by descent to pass on their nationality to a child born outside the UK). As neither of the mothers holds Spanish nationality, although she was born in Spain, the child did not acquire Spanish nationality at birth. She would need to rely on a safeguard in law which ensures that children born in Spain who would otherwise be stateless can acquire Spanish nationality. However, to apply this safeguard it must be demonstrated that the child is unable to acquire any other nationality. The Bulgarian authorities’ denial of access to identity documents, which are essential for the child to evidence her Bulgarian nationality and effectively enjoy her right to Bulgarian nationality, contradict the fact that according to Bulgarian law, the child is entitled to Bulgarian nationality (see below for further elaboration on this point).

This poses a particular and paradoxical challenge in this case, in terms of the ability of the child to provide evidence that she is effectively prevented from acquiring another nationality in order for her to be able to take advantage of the Spanish safeguard. Furthermore, had the child been born in a country without a safeguard that protects children born stateless on the territory, the situation would remain unresolved and the child would be stateless due to discriminatory birth registration practices by the Bulgarian authorities. Given that the UK and Spain have both confirmed the child is neither a British nor a Spanish national, the child is currently stateless, or at least at risk of statelessness. While it is unfortunate that the domestic court did not address the impact on the child’s right to a nationality, the CJEU is free to reformulate the questions referred to it and provide all the elements of interpretation of EU law relevant to the case, including those related to access to EU citizenship and statelessness. This is a fundamental issue that the CJEU must resolve in this case.

In its request for a preliminary ruling, the court asks whether Member States have broad discretion as regards the rules for establishing parentage, however the issue is not the establishment of parentage but rather the recognition in Bulgaria, of the legal parentage established in Spain. In line with caselaw from the CJEU and the European Court of Human Rights (ECtHR), the margin of discretion that Members States have in the recognition of parentage, particularly when this impacts on the child’s best interests and identity, is narrower than for the establishment of parentage. As further explained in this piece, doubts remain as to whether the domestic authorities are refusing to recognise the legal parentage established between the child and her mothers as evidenced by the Spanish birth certificate, or whether they recognise the parentage but refuse to issue a birth certificate. Whichever position the authorities are taking, it has a severe impact on the child’s rights and the refusal to issue a birth certificate results in denying her Bulgarian nationality and thus access to EU citizenship.

Discriminatory birth registration practices negatively impact the fulfilment of children’s rights

Most, but not all of us, have had our births registered. Birth registration involves the official recording of a birth within the civil registry, which records both the fact of the birth and its characteristics. It often results in a birth certificate issued by the civil registrar that provides proof that the child has had their birth registered and is essential evidence of a child's family ties as well as their place of birth. These are key aspects of legal identity and can be critical to establishing the child’s nationality, as nationality is usually acquired either through the parents (jus sanguinis), the place of birth (jus soli), or a combination of the two.

Lack of birth registration is not the same as statelessness, yet it heightens the risk of leaving children without a nationality. Given the key information birth registration provides about individuals and their links to a State, either through the parents or place of birth, not having a birth registered or a birth certificate evidencing registration can contribute to difficulties establishing these links and consequently expose them to the risk of statelessness. Children in this situation face severe obstacles in exercising the rights to which they are entitled under international law such as the 1961 Convention on the Reduction of Statelessness and the 1989 Convention on the Rights of the Child (CRC), including access to education, healthcare and social security. In the case of children born to EU citizens, lack of birth registration and consequent impacts on acquiring a nationality will also impede on their ability to exercise their rights as EU citizens, including free movement rights.

Ultimately, it is never in the child’s best interests to be left stateless, even for a short period of time. As stressed by UNHCR in its Guidelines on Statelessness No. 4, “it follows from Articles 3 and 7 of the CRC that a child must not be left stateless for an extended period of time: a child must acquire a nationality at birth or as soon as possible after birth”.

In its concluding observations to the Bulgarian government in 2018 (CCPR/C/BGR/CO/4), the UN Human Rights Committee noted with concern that same-sex couples married abroad and their children are denied access to civil registration, and made recommendations towards eliminating discrimination on the basis of sexual orientation or gender identity. Such discriminatory birth registration practices against same-sex couples often have a serious impact on the child’s right to a nationality and may render a child stateless, leading to other violations of the child’s rights. This is the situation in the current case, where the Bulgarian authorities have refused to issue a Bulgarian birth certificate for the child on the basis of birth, gender and sexual orientation.

Somewhat paradoxically, in the current case the domestic court has seemingly recognised the legal parentage between the child and the Bulgarian mother, as evidenced by the Spanish birth certificate, through its conclusion that the child would anyway be a Bulgarian national by virtue of having a Bulgarian mother (although see below why this assertion is questionable). Given the legal parentage has been recognised by the Bulgarian authorities in this way, the refusal to issue a birth certificate on the basis of establishing parentage constitutes direct discrimination based on birth, sexual orientation and gender. According to Article 60(2) of the Bulgarian Family Code, the mother of the child is the woman who gave birth to the child, therefore the woman who has not given birth is not considered a mother. However, in a similar situation of an opposite sex couple this issue would not arise, as both parents would be included in the birth certificate without requiring proof of parentage. Such discrimination is not justifiable and requesting information on the biological parentage in this case therefore constitutes a violation of Article 21(1) EU Charter of Fundamental Rights (CFR).

This discrimination based on the sexual orientation of the parents and its impact on the child’s acquisition of nationality is further at odds with the Convention on the Rights of the Child, ratified by all EU Member States, as all children have the right to be registered immediately after birth and the right to acquire a nationality without discrimination of any kind and irrespective of the child’s or their parent’s status (Articles 2 and 7 CRC). The case also raises other important questions beyond the scope of this commentary, but which have been discussed by other experts.

Denial of a child’s nationality in practice, despite entitlement in the law, leads to statelessness

According to the 1954 Convention relating to the Status of Stateless Persons, a stateless person is somebody who is not considered as a national by any State under the operation of its law. This has been authoritatively interpreted by UNHCR as requiring “a mixed question of fact and law”, meaning that statelessness is not just about the letter of the law, but about how the competent authorities apply the law in a specific case. UNHCR also asserts that “under the operation of its law” is not synonymous with “by operation of law”, a term which signifies that acquisition of nationality is automatic in nature, as opposed to other non-automatic mechanisms to acquire nationality (such as through naturalisation).

According to the Bulgarian court, the question of the child’s right to a nationality does not arise in this case as a result of the authorities’ refusal to issue a Bulgarian birth certificate for the child. The court states that the child is still a “Bulgarian national by operation of law”. This suggests that the child would be automatically considered a national under Bulgarian law, but it must be noted that nationality cannot be established by court (Article 4 of the Law on Bulgarian Nationality) and regard must be given to how the law is applied in practice. According to UNHCR’s guidance, asserting whether a person is considered a national under a State’s law and practice requires evaluating evidence issued by the competent authorities. When nationality is acquired automatically, i.e. “by operation of law”, birth registration is usually the document that provides evidence of acquisition of nationality. By refusing to issue a birth certificate, which provides evidence of the legal parentage between the child and her Bulgarian mother, the authorities are also denying the child access to identity documents which are essential for her to evidence her Bulgarian nationality and to effectively enjoy her right to a nationality and all rights derived from it. By extension, the child is also prevented from enjoying her EU citizenship, which the CJEU has reiterated to be “the fundamental status of nationals of the Member States”.

As noted by UNHCR, “where the competent authorities treat an individual as a non-national even though he or she would appear to meet the criteria for automatic acquisition of nationality” – as in the case at hand, where the authorities are preventing access to identity documents – “it is their position rather than the letter of the law that is determinative in concluding that a State does not consider such an individual as a national”.

Denial of EU citizenship and related rights

Refusing to issue a birth certificate should therefore be interpreted as a refusal to recognise Bulgarian nationality, rendering the child stateless. This would also automatically impact on the child’s access to EU citizenship and on the enjoyment of the rights derived from it. As the CJEU held in the Zambrano case, Article 20 TFEU “precludes national measures which have the effect of depriving citizens of the Union of the genuine enjoyment of the substance of the rights conferred by virtue of their status as citizens of the Union”. The refusal to issue a birth certificate means she would be unable to evidence the acquisition of Bulgarian nationality and has no entitlement to any other nationality of an EU Member State, which would result in a denial to acquire EU citizenship and entirely deprive the child from enjoying her rights as an EU citizen.

Furthermore, the CJEU has held that the concept of public policy as justification for a derogation from a fundamental freedom must be interpreted strictly. In the Coman ruling (discussed here), it noted that the obligation to recognise same-sex marriages, for the purpose of granting a derived right of residence to a third-country national, does not undermine the national identity of Member States protected by Article 4(2) TEU or pose a threat to public policy. While Member States are free to decide whether to allow marriage between persons of the same sex, they are precluded from imposing national measures which may obstruct the exercise of free movement rights and such measures must comply with the EU Charter of Fundamental Rights. Although in Coman the CJEU addressed the granting of a derived right of residence to a third-country national who was married to an EU citizen, the principles outlined in the judgment could be applied to the present case in V.M.A. v Stolichna Obsthina.

Upholding EU commitments to equality for rainbow families

The EU has made important strides towards recognising and upholding the rights of children of rainbow families and their parents in recent years, not least with the recent introduction of a five-year LGBTIQ Equality Strategy, which includes protecting the rights of rainbow families as one of four key pillars for action between 2020-2025. As President von der Leyen asserted in her State of the Union address, “if one is parent in one country, one is parent in every country”. As part of the strategy, the European Commission commits to bringing forward a legislative initiative on the mutual recognition of parenthood and to explore possible measures to support the mutual recognition of same-sex partnership between Member States. This builds on work in recent years by the Commission under its List of Actions to advance LGBTIQ equality to address free movement and cross-border issues, through its dialogue with Member States to remove obstacles concerning the recognition of birth certificates of children born to same-sex couples in another Member State.

Furthermore, in order to improve legal certainty for EU citizens exercising their free movement rights, and to ensure a more effective and uniform application of the free movement legislation across the EU, the European Commission committed in the LGBTIQ Equality Strategy (as also described in the EU Citizenship Report 2020) to review the 2009 guidelines on free movement in 2022 and to ensure that the updated guidelines reflect the diversity of families, and to help all families, including rainbow families, to exercise their right to free movement.

Through these initiatives, the EU demonstrates the responsibility of both the EU and its Member States to remove barriers to birth registration and to ensure the recognition of birth certificates of children born to rainbow families, the legal parentage of the children and any consequences on the child’s right to a nationality.

In 2021, the EU will publish a 2021-24 strategy on the rights of the child, providing a comprehensive framework for EU action to promote and protect children’s rights, and including recommendations for action by other EU institutions, EU Member States and stakeholders. This presents a further opportunity for the EU to outline action to protect the rights of children of rainbow families, including the right to a nationality.

The role of the courts in respecting the best interests of the child and upholding the child’s right to a nationality

Nationality law usually falls within a Member State’s competency. However, as the CJEU emphasised in Rottman, when exercising their powers in the sphere of acquisition and loss of nationality, Member States must have due regard to EU law, including upholding the EU’s values and the rights enshrined in the EU Charter of Fundamental Rights. (See discussion of later CJEU case law here)

Under its Article 53, the level of protection granted by the provisions of the EU Charter of Fundamental Rights is at least equivalent to the protection granted by the European Convention on Human Rights (ECHR) and international law, including the CRC. It is therefore essential for the CJEU to draw from international jurisprudence on the right to respect for private and family life in the consideration of this case, as well as to consider the right to a nationality, the principle of non-discrimination and the best interests of the child in line with international human rights law.

Case law from the ECtHR affirms that the recognition of parentage and acquisition of nationality fall within the ambit of the right to respect for private and family life (e.g. Mennesson and Genovese), as protected by Article 8 ECHR and Article 7 CFR, and provides guidance to its interpretation. Particularly in Mennesson, the ECtHR has stressed that respect for private life requires that everyone should be able to establish details of their identity as individual human beings, which includes the legal parent-child relationship, emphasising that children have a right to legal identity.

The child’s right to a nationality is further protected under Article 15 UDHR, Article 24(2) ICCPR, and Articles 3 and 7 of the CRC. The UN Human Rights Committee has recently found that failure to identify statelessness and assess a child’s nationality status led to a violation of the right to a nationality (Zhao v Netherlands). Furthermore, in their General Comment No 14, the Committee on the Rights of the Child recognises that the best interests of the child might conflict with other interests, including the public interest, and notes that authorities must bear in mind that the right of the child to have their best interests taken as a primary consideration means that the child's best interests are not just one of several considerations, nor should they be considered on the same level as all other considerations. Rather, they take priority in all circumstances, “especially when an action has an undeniable impact on the children concerned” (CRC General Comment No 14 para 40), as is the situation in this case.

The courts play a key role in interpreting national legislation and thus aligning domestic practice with the regional and international human rights framework. While domestic courts must not lose sight of their international obligations, the regional courts have a further responsibility to ensure that the diversity of national jurisdictions does not compromise respect for fundamental rights or the best interests of the child. Cases similar to the one presently before the CJEU have been reported across Europe, with children born to same-sex couples facing discrimination in recognition of civil status documents and in access to birth registration and identity documents, particularly in Poland, Bulgaria and Ireland. The nationality laws of all Member States must be applied in a non-discriminatory manner and with respect for fundamental rights, especially when they have a direct impact on the enjoyment of EU citizenship. Currently, children are being born stateless or at risk of statelessness in the EU and denied EU citizenship, solely because of a prejudice towards their parents’ sexual orientation. The CJEU therefore has an essential role to play in supporting progress towards a seamless implementation of international standards on statelessness and human rights law in all EU Member States, and towards a Europe where no child is born stateless.

*Reblogged from the European Network on Statelessness blog

Barnard & Peers: chapter 13

Photo credit: Laurent Verdier, via Wikimedia Commons

The EU Migration and Asylum Pact’s Blind Spot on Statelessness Must be Remedied: Here’s How

 

Chris Nash, Director, European Network on Statelessness*

 

Last week the European Network on Statelessness launched its detailed analysis of the EU Pact on Migration and Asylum. Our commentary focuses on the impact the proposals set out by the European Commission in September (discussed here and here on this blog) would have on the fundamental rights of stateless migrants and refugees, and makes concrete recommendations on how these should be addressed as an integral part of negotiations on, and implementation of the Pact.

 

As it was presented, the Pact makes no mention of the rights of stateless people, nor does it provide any clarity on how to respond to the specific protection challenges faced by stateless refugees and migrants. The existing EU asylum and migration acquis contains no reference to the rights due to stateless people under international law, so perhaps we should not have been surprised by the Pact’s blind spot in this area, despite previous dedicated European Council Conclusions on Statelessness, and research clearly showing that whether someone is stateless impacts on their migration journey in innumerable ways.

 

We know that more than 3% of asylum applicants to the EU are registered as stateless or ‘of unknown nationality’. And the true figure is likely much higher given the lack of tools to identify and record statelessness at Europe’s borders. There is currently no mechanism to register statelessness on arrival so stateless refugees and migrants are often wrongly ‘assigned’ a nationality by officials based on their country of origin or the languages they speak. Many more people from countries where discriminatory laws, state succession, nationality stripping, or protracted displacement mean they have lost or never acquired a nationality are invisible in the statistics. We know of people from Syria, Lebanon, Palestine, and the former Soviet Union, among many others, who have struggled for years to have their statelessness recognised by authorities in Europe. Whether someone is stateless not only impacts on asylum decision-making, but also on the nationality rights of their children, as well as on access to related procedures like family reunification or resettlement, not to mention inclusion or the possibility of return.

 

A precondition for a more harmonised and horizontal approach to statelessness across EU asylum and migration acquis is to improve identification and recording of statelessness, referral to appropriate determination procedures (including dedicated Statelessness Determination Procedures (SDPs)), access to protection, and measures to support integration and inclusion. This would help end the harmful cycles of criminalisation, detention, and enforced destitution that many stateless people in Europe currently face. Put simply, we are urging the realisation of the rights that stateless people, including children, are already entitled to under international law.

 

We therefore propose including within the Pact, a clear reference to the 1954 Convention and the definition of a stateless person, as well as a requirement to screen for and record ‘initial indications of statelessness’ at the border and refer people to appropriate determination procedures (including SDPs). Facilitating data collection on statelessness in EU databases will also be crucial as part of proposed plans under the revised Eurodac Proposal. The very nature of statelessness can mean that a stateless person has no country to which they can return. We therefore call for exempting stateless people from return sponsorship, ensuring statelessness-related barriers to return are acknowledged and that referrals are made to SDPs from return procedures.

 

It is positive that, as a measure to facilitate inclusion, the Pact proposals include an amendment to the Long-Term Residence Directive to shorten the period of time that beneficiaries of international protection should have to wait to obtain long-term residence status to three years. We strongly recommend that beneficiaries of protection under the 1954 Convention (‘stateless status’) are explicitly included in this amendment.

 

Mainstreaming statelessness in the work of the Migration Preparedness and Crisis Network and including a subsection on statelessness in the Commission’s Migration Management Reports will be crucial for ensuring that migration-related information on statelessness is collected and shared in a coordinated and integrated manner. In addition, EASO’s welcome attention to the issue of statelessness in recent publications should be built on by ensuring that statelessness is mainstreamed across the work of the new EU Asylum Agency. The positive focus on monitoring introduced in the draft Pact proposals must also involve integrating the rights of stateless people under international law into guidance on fundamental rights monitoring.

 

Further, it is vital to counter residual questions about relevance or competency often mistakenly put forward as stumbling blocks on the path to progress. We are not questioning that EU action must go hand-in-hand with a concerted effort by States to uphold their international obligations, facilitate naturalisation and ensure their nationality laws prevent new cases of statelessness arising. But the EU is lagging behind other regions of the world in global efforts to eradicate statelessness and can no longer ignore the need to harmonise its approach to stateless refugees and migrants if it is to remain credible as a bastion of rule of law and human rights. Stateless people and affected communities must be central to these efforts. We believe that the European Pact on Migration and Asylum could and should be the occasion to make this happen.

 

For further information:

European Network on Statelessness, Statelessness and the EU Pact on Asylum and Migration: Analysis and Recommendations, January 2021

European Network on Statelessness, Stateless Journeys knowledge hub

European Network on Statelessness, Statelessness Index

European Network on Statelessness, No child should be stateless: Ensuring the right to a nationality for children in migration in Europe, April 2020

European Network on Statelessness, Protecting Stateless Persons from Arbitrary Detention: An Agenda for Change, April 2017

 

Barnard & Peers: chapter 26

JHA4: chapter I.5

Photo: (Copyright) UNHCR/Alfredo D’Amato

*This article first appeared in the ECRE Weekly Bulletin

EU Migration Agencies: the Operation and Cooperation of Frontex, EASO and Europol

 

 

Dr. David Fernández-Rojo, Universidad de Deusto - davidfrojo@deusto.es

 

The so-called “refugee crisis” revealed the urge to ensure the functioning of the Schengen area and the Common European Asylum System (CEAS), the desire to operationally assist those Member States most affected by the sudden and extraordinary arrival of mixed migratory flows, and the need to implement effectively and uniformly the EU measures adopted in regard to migration, asylum and border management matters. Against this background, the decentralized EU Agencies, Frontex, EASO and Europol, have emerged as key actors, not only in providing emergency operational assistance to the frontline Member States, but also in implementing the hotspot approach. The expansion of the operational role, multilateral cooperation, presence on the ground and institutional significance within the Area of Freedom, Security and Justice (AFSJ) of Frontex, EASO and Europol, is now unquestionable.

 

Hence, my book entitled “EU Migration Agencies: The Operation and Cooperation of Frontex, EASO and Europol”, published by Edward Elgar Publishing, comparatively analyzes the evolution of the operational tasks and cooperation of Frontex, EASO and Europol. Special attention is paid to the expansion of the legal mandates of these AFSJ agencies, the reinforcement of the activities they undertake in practice on the ground and to what extent a gap exists between these two dimensions.

 

The evolution of the operational tasks of Frontex, EASO and Europol is analyzed and two trends are highlighted. Firstly, while the Regulations of these AFSJ agencies continue to stress that their operational role is limited to providing the competent national authorities with the technical assistance they may require, the tasks of Frontex, EASO, and to a more limited extent, Europol, have an operational nature on the ground. Secondly, Frontex, EASO and Europol are increasingly involved in guaranteeing the effective and uniform implementation of EU migration, asylum and border management measures, as well as ensuring that the concerned Member States do not jeopardize the functioning of the Schengen area or the CEAS. These two emerging trends are discussed in turn.

 

In this book I point out that Frontex, EASO and Europol closely accompany the frontline Member States in the implementation of EU migration, border management and asylum policies. These agencies focus on operationally supporting the competent border, asylum and law enforcement national authorities in effectively implementing EU law. The expansion of EU competences in AFSJ matters has gone hand-in-hand with the reinforcement of their administration, which no longer falls exclusively on the Member States, but rather, on a conundrum of diverse actors, among which Frontex, EASO and Europol play a prominent operational role.

 

The growing integration that the AFSJ is experiencing has led to a Europeanization of its administration. It is necessary to ensure a uniform and effective implementation of EU border management, asylum and migration laws. The long-standing notion of administrative and implementation power in AFSJ matters is therefore progressively shifting. The deepening of the operational powers and cooperation of Frontex, EASO and Europol is eroding the exclusive procedural autonomy that Member States previously enjoyed, when implementing EU law. These AFSJ agencies increasingly steer and shape the effective and uniform implementation of EU migration, asylum and border management laws and policies at the national level.

 

Furthermore, the extent of the operational functions of Frontex, EASO and Europol may theoretically range from merely coordinating and providing technical assistance to the Member States, to developing full-fledged enforcement and coercive powers. Since Frontex, EASO and Europol do not have independent executive competences, their tasks can no longer be described as merely technical or supportive. Despite the lack of transparency and the vague legal provisions regulating the activities that Frontex, EASO and Europol undertake in practice on the ground, their tasks do have an operational nature. The issue is that the legal frameworks of Frontex, EASO and Europol lag behind the real operational powers that these agencies exercise on the ground, which creates legal uncertainty.

 

The reinforcement of the legal mandates and inter-agency operational cooperation of Frontex, EASO and Europol thus reveal a trend, under which these AFSJ agencies are mandated to increasingly develop operational and implementation activities. The operational and implementation role of Frontex, EASO and Europol has followed a constant and linear progression since their respective establishment. While Europol, due to its still markedly intergovernmental nature, is starting to operationally assist the national law enforcement authorities in their national investigations about illegal migrant smuggling, Frontex and EASO already conduct significant operational tasks on the ground and ensure the implementation of the adopted European Union measures at the national level. Whereas the current tasks already represent an erosion of the operational powers and implementation prerogatives of the Member States, none of these AFSJ agencies have been bestowed centralized, fully autonomous operational and enforcement powers on the ground.

 

The reinforcement of the operational tasks and implementation role of Frontex, EASO and Europol is not in itself an issue. What is problematic is the broad formulation of these AFSJ agencies’ legal bases and the lack of transparency surrounding their operational activities and cooperation, rendering the task of determining the degree of discretion they enjoy difficult. The key challenge involves determining the degree of discretion that Frontex, EASO and Europol enjoy and whether the institutional balance in the EU is respected. In this light, and despite the fact that Frontex, EASO and Europol have not been vested with strictly delegated powers, this book followed the CJEU’s non-delegation doctrine as useful guidance to analyze the legality of these AFSJ agencies’ operational functions under EU constitutional law.

 

The CJEU, in its Short-Selling judgment (discussed here), updated and relaxed its initial Meroni doctrine, by no longer confining delegation to clearly defined executive powers, but rather to powers precisely delineated and amenable to judicial review in the light of the objectives established by the delegating authority.

Unlike in the case of Short-Selling, the operational powers of Frontex, EASO and Europol are neither circumscribed by well-detailed conditions that limit their discretion, nor clearly detailed in a legal framework or their Regulations. These AFSJ agencies’ operational tasks are not restricted to merely providing technical support to the frontline Member States, but rather, they develop expanding cross-agency operational cooperation and activities on the ground. These agencies’ tasks entail the exercise of discretional prerogatives that are not narrowly delineated or clearly conditioned in any national or EU legal instrument. For instance, Frontex and EASO played a strong recommendatory role in the hotspots, which in principle, is compatible with the non-delegation doctrine, since the concerned Member States are not bound by Frontex and EASO’s recommendations.

 

Nonetheless, the national authorities, subject to extraordinary migratory pressure, may decide to rubber-stamp the recommendations put forward by the agencies. Frontex’s influence over the Greek officials in determining the nationality of the arriving migrants, Europol’s advice and operational support to the national enforcement authorities to dismantle migrant smuggling networks, and EASO’s admissibility assessment of the asylum applications or the detection of vulnerable applicants encompass in practice discretional and political choices. In these cases, the responsibilities of the agencies are blurred, since the national authorities adopt a final decision based on the assessment of the agencies.

 

Although fully autonomous enforcement and coercive powers are not possible under the current Treaties and would breach the non-delegation doctrine, the ambiguity and lack of transparency surrounding the operational tasks that Frontex, EASO and Europol undertake on the ground challenge the determination of their discretion and whether they actually make policy choices. In the author’s view, the main limitation and control of Frontex, EASO and Europol’s distinctive operational and implementation role comes from the Member States. While it is true that Frontex, EASO and Europol assist the Member States in matters closely linked to their national sovereignty prerogatives, the competent national authorities that vote at the management boards tightly control their recently reinforced operational, implementation and supervisory functions. Only two representatives of the European Commission have voting rights in Frontex and EASO’s management boards and this figure falls to just one representative in the case of Europol. The presence of the European Parliament in Frontex, EASO and Europol’s management boards is non-existent. Member States also exert their influence over the appointment and supervision of the executive directors, who lead the governance, management and daily administration of Frontex, EASO and Europol.

 

Member States’ reluctance to fully abandon their well-established bilateral practices, share information and operationally cooperate with Frontex, EASO and Europol in core national sovereign matters, like border management, asylum or migration, is especially reflected in these AFSJ agencies’ management boards. The Member States will thus maintain control of the strategic decisions and the daily management of Frontex, EASO and Europol. While centralizing on the executive, decisional and enforcement powers of Frontex, EASO and Europol will ensure a fully effective and harmonized implementation, it is important to bear in mind that these agencies represent an institutional trade-off or a common ground between intergovernmentalism and communitarization in the AFSJ. That is, Member States do not wish to relinquish further sensitive competences to the EU Institutions; but at the same time, they increasingly need supranational operational assistance regarding matters that can only be effectively managed in an integrated manner at the EU level. For this reason, whereas Europol, Frontex and EASO have been conferred upon significant operational tasks, none of these agencies are vested with full decisional, enforcement or coercive powers, which remain as an exclusive competence of the competent national authorities.

 

Hence, this book makes four main contributions. First, it maps Frontex, EASO and Europol as EU decentralized agencies, which are clearly distinguished by their operational powers and by the possibility to directly assist the competent national authorities on the ground. In particular, the establishment and early operational functions conferred on Frontex, EASO and Europol are studied. Second, it comparatively analyzes the reinforcement of the operational tasks vested on Frontex, EASO and Europol, as well as the extent of their assistance on the ground and influence on the implementation prerogatives of the national authorities in the aftermath of the “refugee crisis”. Third, it explores the bilateral and multilateral inter-agency cooperation between Frontex, EASO and Europol. Specifically, the expanded multilateral and operational cooperation that takes place in the hotspots is studied. Fourth, the limitations to the reinforced operational activities and cooperation of Frontex, EASO and Europol is analyzed. The constitutionality and legal bases of these AFSJ agencies, as well as the degree of discretion that they enjoy according to the Court of Justice of the European Union (CJEU) non-delegation doctrine, is examined. The internal administrative organization and governance of Frontex, EASO and Europol is also studied as to determine the influence and real control that the Member States and civil society may exert over the increasing operational powers these AFSJ agencies have been conferred.

 

Barnard & Peers: chapter 26

JHA4: chapter II:4

Photo credit: Rock Cohen, via wikimedia commons

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