Some thoughts on the ECJ hearing on the Draft EU-ECHR Accession Agreement (Part 2 of 2)
By Stian Oby Johansen, PhD Fellow, Scandinavian Institute of Maritime Law, University of Oslo
(Cross-posted at my personal blog.)
I was in Luxembourg 5-6 May 2014, attending the hearing at the European Court of Justice concerning the Draft Agreement for the Accession of the European Union to the European Convention on Human Rights. In these two posts (click here for part 1) I summarize the main arguments presented at the hearing, and provide some initial analysis and thoughts. Finally, I would not be a lawyer if I did not point out that some caveats apply: I am writing based on my own notes and recollection, and thus there might be inaccuracies, omissions and misattributions. If you come across any, feel free to point them out in the comments section below. I would also greatly appreciate any other comments or thoughts you might have in relation to this case.
The second and final day of oral argument at the ECJ in the case concerning the validity of the Draft Agreement for the Accession of the EU to the ECHR (hereinafter: the DAA) focused on the questions put to the parties by the judges yesterday. Those questions are summarized at the end of yesterday’s blog post. Moreover, some of the judges, as well as the Advocate General, asked further questions towards the end of the hearing.
The questions concerning the autonomy of the Union’s legal order
In response to the rather general question by the judge-rapporteur, and the more precise one from the advocate general, both concerning the DAA’s compatibility with the autonomy of the Union legal order, the Commission insisted that it saw no structural obstacles to the Union’s accession. The ECtHR will be a superior court in relation to the ECJ, but it will only be so in a limited capacity, as a specialized court for human rights issues.
Moreover, as other parties pointed out, the judgments of the ECtHR would only be binding on the Union as a matter of public international law. The ECtHR would not (as was also argued yesterday) be in a position to interpret Union law in a manner that would be binding upon the ECJ. As Germany submitted, the Union’s accession to the ECHR would only affect the interpretation of the Union’s fundamental rights by the ECJ. And, as the United Kingdom pointed out, this is already the case: Under article 52(3) of the Charter of Fundamental Rights (CFR) and TEU article 6(3) the ECJ is already bound to apply the ECtHR’s case-law when interpreting the fundamental rights provisions of Union law.
In practice, it is only the procedural side of ECtHR cases where Union law is challenged that will be revolutionized following accession. This is because the ECtHR will be able to act as an external accountability mechanism in relation to the Union within the field of human rights. As the Council and several member states argued, whatever the implications of this may be for the Union’s legal autonomy, those implications are inherent to the concept of EU accession to the ECHR. Giving the ECtHR jurisdiction to rule on whether the Union has violated the ECHR is inextricably linked with accession. Thus they submitted that if the DAA is seen by the ECJ as encroaching upon the Union’s autonomy, as it has previously been defined in ECJ case-law, such encroachment would be allowed under TEU article 6(2). The argument is, in other words, that the obligation to accede to the ECHR according to TEU article 6(2) can be used to carve out an exception from the Union’s legal autonomy – if necessary.
One of the ECJ judges reacted t this line of argument, asking whether the parties were giving TEU article 6(2) undue weight, seeing as both it an Protocol 8 to the TEU also states that an accession agreement must respect the autonomy of the Union’s legal order. Thus, the judge added, TEU article 6(2) might just as well be read as a only allowing accession to the ECHR given that this can be squared with the Union’s legal autonomy. The Commission responded to this by referring to what it had already said, and adding that TEU/TFEU Protocol 8 states that accession must happen through an agreement, which necessitates negotiations between all ECHR parties. Consequently the ECJ should, at least to some extent, respect that it is inherent in the nature of negotiations that the Union cannot get absolutely everything it asks for.
Germany made further submissions to the effect that the ECJ (or, more precisely perhaps, the Union) would indeed enjoy any margin of discretion when implementing the ECtHR’s judgments. I saw a comment on Twitter asserting that this Germany argument seems to overlook the fact that (self-executing) international law automatically forms part of the Union’s legal order, with direct effect. I do not think that this would make Germany’s point moot. Several ECHR state parties have constitutions that are open to international law in a manner very similar to that of the Union. Nevertheless, domestic courts in those states do from time to time contest decisions of the ECtHR. Because international law generally, and ECHR law especially, does not have a doctrine of stare decisis, the possibility of such contestation is in my view not precluded by automatic (and self-executing) transposition of the ECHR. Germany would therefore seem to have been right, and its submission also sits well with the principle that the Union is to accede on an “equal footing” with the other parties to the ECHR – a principle which is heavily emphasized in the DAA.
Commenting upon this part of the proceedings is difficult, I think. The ECJ’s case-law concerning the autonomy of the EU legal order is not the most accessible. The reasoning is typically less than clear, and whether an agreement does or does not sufficiently respect the Union’s legal autonomy seems difficult to predict. Although I will refrain from labeling the ECJ’s judgments in these cases as political, the concept of EU legal autonomy does give the ECJ a significant discretion. And it seems to be using this discretion to reject any treaty that it dislikes on some level, without necessarily setting out clear reasons for its choice.
In spite of these uncertainties, I will still place my bets: I predict that the DAA will not be found to be incompatible with the legal autonomy of the Union. The ECJ has gotten all the safeguards that it asked for during the negotiations, when it published a “discussion document” outlining its appraisal of the forthcoming accession negotiations. Furthermore, the ECtHR will probably never be in the position to interpret Union law on its own, without being able to rely on a previous ruling or judgment of the ECJ in the same case as an authoritative interpretation of Union law applicable. And, if the ECtHR in exceptional circumstances will have to interpret Union law without prior ECJ intervention, the ECtHR’s interpretation would not be binding on the Union. All these arguments seem to point towards the conclusion that the DAA is compatible with the Union’s legal autonomy. Accession to the ECHR is not much different from e.g. the Union’s present membership the WTO, which also puts the Union under the supervision of an external judicial body that interprets an external body of law and make judgments that may become legally binding for the Union. It is also explicitly recognized in Opinion 1/09(albeit obiter dictum) that the Union’s legal autonomy is not incompatible with the accession to “an international agreement providing for the creation of a court responsible for the interpretation of its provisions”. If the ECJ nevertheless puts its foot down, it will probably be seen by the broader EU law community as an exercise of discretion by the ECJ in a manner inconsistent with the Union’s commitments to human rights and the obligation to accede enshrined in TEU article 6(2).
EU accession to the ECHR and the new 16th ECHR Protocol
One of President Skouris’ questions on the first day of oral argument was the position of the parties concerning the recently concluded Protocol 16 to the ECHR. This Protocol is optional and has only been signed by a few of the ECHR parties, and none of them have yet ratified it. The purpose of Protocol 16 is to enable domestic apex courts to ask the ECtHR for a preliminary opinion on the interpretation of ECHR provisions.
Some member states rightly pointed out that the Union will not accede to ECHR Protocol 16 under the DAA, and argued that it should thus fall outside the scope of the present proceedings. But ECJ President Skouris was not satisfied with this reply. Toward the end of the hearing he entered into a heated debate with Dr Hannes Krämer, agent of the Commission, concerning the risk that Protocol 16 might pose to the Union’s legal autonomy. President Skouris pointed out that the Commission had submitted that the ECHR will occupy a position within Union law that is identical to any other treaty, according to TFEU article 216. This should entail that the Haegeman jurisprudence of the ECJ will also apply to the ECHR. Under this jurisprudence, the provisions of the ECHR might be directly applicable – also before domestic courts – within the scope of Union law. President Skouris then presented the hypothetical that if a domestic court of an EU member state gets a case where the validity of e.g. a regulation with the ECHR is alleged, that question might be the subject of a preliminary reference to the ECJ.
In this case, President Skouris said, if the member state has acceded to Protocol 16, there is an opportunity for “forum shopping”, at least for the apex courts. Dr Krämer of the Commission replied that the apex courts would be prohibited from choosing the ECtHR in this case due to the CILFIT doctrine. But President Skouris countered by modifying his hypothetical case: imagine that there had already been a reference to the ECJ by the first instance domestic court, and that the apex court thus is unencumbered by CIILFIT, which should in turn entail that it could ask the ECtHR for a second preliminary opinion. The Commission’s reply to this was somewhat unsatisfactory. The Council, however, added that any threats to the Union’s legal autonomy due to Protocol 16 would have to be eliminated in the internal EU rules concerning the accession – which, as I mentioned in my previous post, are yet to be drawn up.
Some people in the audience that I spoke to suspected that the aggressive line of questioning from the judges concerning Protocol 16 suggest that the ECJ is considering using it as a scapegoat in order to find the DAA incompatible with the Union’s legal autonomy. This could be a way for the ECJ to reject the DAA without coming off as overtly “political” in its judgment. Therefore I think that is a perfectly plausible hypothesis as to how the argument of the ECJ will be structured, given that it indeed wishes to reject the DAA.
On the other hand, I still think it is far more likely that the ECJ will uphold the DAA. Firstly, it does not seem clear to me that the co-respondent procedure, and thus the prior involvement mechanism, cannot be applied when the ECtHR is asked to give a preliminary opinion in a case. The wording of the relevant provision, DAA article 3(2), is as follows:
“Where an application is directed against one or more member States of the European Union, the European Union may become co-respondent to the proceedings in respect of an alleged violation notified by the [ECtHR] if it appears that such allegation calls into question the compatibility with the [ECHR] rights at issue of a provision of European Union law [...]” (emphasis added)
In my view this provision could also apply to requests for advisory opinions under ECHR Protocol 16. The only possible obstacle in this regard seems to be the term “application” in the introduction of the paragraph. However, I would expect the ECtHR to interpret this term broadly, as also covering requests for advisory opinions. Especially considering that the context and purpose of DAA article 3 is to enable the Union to become co-respondent in all cases where the compatibility of Union law is at stake, I believe that such a wide interpretation is indeed required. Consequently, the Union will be allowed to become co-respondent in such cases, which entails both the right to participate in the procedure before the ECtHR, and the right to make use of the “prior involvement” procedure under DAA article 3(6).
Secondly, President Skouris’ hypothetical (with the added twist) is not terribly different from what would be the case if Protocol 16 is out of the picture. If the domestic apex court does not ask the ECtHR for a second preliminary opinion, as described just above, an individual losing party may submit an application to the ECtHR. Before the ECtHR, the Union would certainly be allowed to act as co-respondent, but the ECJ would not have a right to prior involvement. This is because in President Skouris’ (modified) example the ECJ has already ruled on the interpretation and validity of the Union act in the preliminary reference to it by the domestic court of first instance.
Third and finally, in its judgment concerning the compatibility of the DAA with the constituent treaties, the ECJ should be able to conclude – either in the operative paragraph, in its dicta, or obiter dictum – that the EU member states have an obligation not to accede to Protocol 16. Such an obligation could, in my humble opinion, be based on the duty of sincere cooperation under TEU article 4(3). This would merely mean finding that the EU member states have a duty to refrain from entering into an international agreement that could endanger the autonomy of the Union’s legal order. (There might even be ECJ precedent for this, although I cannot remember a case in point.) Those EU member states that have already signed Protocol 16 would then have to withdraw their signatures. This would be allowed under treaty law, as none of the member states have yet ratified Protocol 16. A statement by the ECJ to this effect would also protect the Union’s legal autonomy from any future ECHR Protocol that could potentially threaten this concept of autonomy. If an EU member state nevertheless took steps toward joining an infringing Protocol, the Commission could launch infringement proceedings.
Additional questions by the judges and the Advocate General
In addition to the “big” issue of EU autonomy and the DAA, intertwined with the discussion of ECHR Protocol 16, there was also room for a few other question on this last day of the hearing. Advocate General Kokott asked two questions: First, what is the legal basis for setting up the prior involvement mechanism in the EU legal order? Second, she pointed to the fact that the ECtHR website does not contain an exhaustive list of applications, and wondered whether this would be problematic.
To take the short and sweet second question first: The Commission pointed out that although the ECtHR does not list all applications it have received, it does exhaustively list and detail all cases that have been communicated to the respondent government(s). As no case can be decided by the ECtHR without it having first been communicated to the respondent government(s), the EU should be in a sufficient position to assess whether cases that are pending before the ECtHR raise questions concerning the compatibility of Union law with the ECHR.
With regard to the first question asked by Advocate General Kokott, both the Commission, Parliament and Council agreed that it would be preferable to embed provisions concerning the functioning of the prior involvement mechanism in the (hopefully forthcoming) Council decision accepting the DAA. The advocate for the Parliament added a caveat though: If this approach is taken, it would be the first time substantive provisions have been included in this kind of Council decision. Whether this would be problematic, the Parliament officially had no defined position on. The Parliament also added that it might be necessary to amend the ECJ’s statute to implement the prior involvement procedure.
Judge Malenovský also asked some questions in the latter part of the hearing. His questions focused on the procedure for execution of judgments at the Council of Europe. As part of the brokered final deal on the DAA, the EU member states accepted special voting rules for the CoE Committee of Ministers when dealing with cases concerning execution of judgments that the Union is a party to. These voting rules were drafted to ensure that the Union and its member states will not be able to use their “block vote” to fully control the outcome in cases that the Union is party to. Under these rules the minority of non-EU parties to the ECHR will be able to block any attempts by the Union to mark a case as resolved, and the same minority will be able to submit the question of whether a judgment has been duly complied with by the Union to the ECtHR.
In these circumstances, where the votes of the Union and its member states are in practice given reduced value compared to what would ordinarily be the case, Judge Malenovský wanted to know to what extent the non-EU state parties to the ECHR would respect the characteristics of Union law in the execution of judgments. The European Parliament’s reply to this was that the Union will be represented in all relevant CoE organs, and that how it will act in that capacity should be laid down in the internal EU rules. The Commission added that TEU Protocol 8 only requires participation. It also pointed that non-EU parties to the ECHR are of course not bound by TEU Protocol 8, and emphasized the need for this change in voting rules to ensure the credibility of the CoE Committee of Ministers execution procedure.
Judge Malenovský then interrupted, and begun his response with the words: “then we have given it all up”. He opined that there seemed to entail no fair balance between EU votes and the non-EU minority’s right to ask the ECtHR to intervene during the execution phase. To this Dr Krämer of the Commission replied that the non-EU minority’s right to ask the ECtHR in the execution phase will be a sort of “dead letter” – an exceptional safeguard that one does not intend will be used in practice. Also, the Commission added, asking the ECtHR to review whether a party has correctly implemented a previous judgment only implies another round of ECtHR review. For this reason, and since such ECtHR involvement would result in a declaratory judgment, the Union’s legal autonomy is not threatened. The Commission finally repeated forcefully that without such voting rules, the EU could have always blocked the execution of judgments against it. An argument put forward by some of the EU member states earlier in the hearing also seem to be related to this question. Namely that the ECtHR should, with reference to inter alia TEU article 6(2), respect the fact that a negotiated deal on the Union’s accession had to be struck with the non-EU member states.
Finally, it should be mentioned that Judge Rosas asked a question concerning the post-accession place of the ECHR in the Union’s legal hierarchy. Normally, under TFEU article 216, treaties automatically form part of the Union’s legal orders. To the extent that they contain individual rights, treaty provisions will also have direct effect in Union law. The rank of international treaties within the Union legal order is one between primary law (EU treaties) and secondary law (EU legislation, e.g. directives and regulations). Consequently, if a directive or a regulation is incompatible with a directly applicable provision in a treaty binding upon the Union, the directive or regulation must be annulled.
Judge Rosas wanted to know whether the ECHR would be considered “just” a regular international treaty, or if it would occupy a special position within the Union’s legal hierarchy. He referred to the special provisions in the Union’s constituent treaties concerning the ECHR, namely TEU article 6(2) (the obligation to accede), TEU article 6(3) (referring to the ECHR as forming part of the general principles of EU law), TFEU article 218 (providing that all EU member states must vote in favor of accession to the ECHR), TEU Protocol 8 (outlining the details of the obligation to accede), and CFR articles 52(3) and 53 (providing that the Charter rights cannot be construed as providing less protection than the ECHR). Given all this, he asked, is it possible that the ECHR will gain an elevated rank – above other international treaties and secondary law, but still below primary law?
The Commission quite clearly rejected Judge Rosas’ suggestion, arguing that the ECHR would not occupy any special position. In its view, CFR article 52(3) and 53 operate separately from the Union’s accession. In my view this seems correct, as those two provisions obviously apply pre-accession. The Commission moreover added that the decision to accede to the ECHR is far from the only one under Union law to require unanimity. Additionally, the European Parliament pointed out, under TFEU article 218(8) unanimity is also required in relation to many other treaties, and no one has suggested that this entail any special position vis-à-vis treaties not accepted by a unanimous Council decision. In its reply to the question, the Council agreed with the two other institutions.
In my view, the position of the EU institutions must be correct. First, to establish an entirely new rank of law within the Union’s legal order would seem to require a firmer basis than what Judge Rosas hinted at. Second, and most importantly, there is no need to give the ECHR such a position within the EU legal order. As already mentioned, the Union’s accession to the ECHR will in practice not affect the content of substantive law. Neither would a privilege position for the ECHR, above other international treaties have any substantive effect. The rights guaranteed under the ECHR already have protection at the level of primary law through the Charter of Fundamental Rights, and CFR articles 52(3) and 53 guarantee that these rights are not interpreted so as to give individuals lesser protection than under the ECHR.
When the hearing concluded at about 13:00 on Tuesday it was impossible to refrain from speculating on what the judges’ questions might reveal with regard to their position on the compatibility of the DAA with the Union’s constituent treaties. Since the questions were quite critical, with the exception of that from Judge Rosas, some speculated that the ECJ is considering finding that the DAA is indeed incompatible with the Union’s constituent treaties. In doing so they might plausibly use either ECHR Protocol 16 or the special voting rules applicable to the execution of judgments within the CoE Committee of Ministers as a scapegoat. If the latter avenue was chosen, the ECJ could possibly render accession practically impossible, since it is very difficult to imagine that the non-EU state parties to the ECHR would accept a solution whereby the Union could in theory block any measures of execution against it.
On the other hand, I believe that we should not let this sort of pessimism carry us away. First, given the fact that all parties before the ECJ agreed on the compatibility of the DAA with the Union’s constituent treaties, it more or less falls to the ECJ to be the critical “devils advocate”. When no-one else is arguing in opposition, it is only natural that a court asks critical questions in an attempt to poke holes in the arguments presented, thereby ensuring sufficient contradiction. Second, it is generally advisable not to put too much emphasis on the questions of judges as a tool for predicting the outcome of cases. There might be many reasons why a judge would ask a particular question. Third and finally, from the perspective of a judge it is neither appropriate nor necessary to use the opportunity to ask questions in open court as a way of arguing his or hers personal position on the matter at hand. The aim during the hearing is to ascertain what the positions and arguments of the parties are, and their opinion on possible counter-arguments. Only at a later stage, during the closed deliberations, will the need to convince one another be firmly in the mind of the judges.
Therefore, I would like to end on a positive note. I believe that the DAA is compatible with the constituent treaties of the Union. I also hope that the ECJ will recognize that fact, and seize this historic opportunity to, as Sweden characterized it, ensure that the “last piece of the puzzle” of human rights protection in Europe is put in place.
The first part of my analysis of the EU-ECHR accession hearing is available here. This post was slightly edited, corrected, supplied with additional links, and (somewhat) proofread on 9 May 2014.