Opinion 2/13: A bag of coal from the CJEU
By Stian Oby Johansen, PhD Fellow, Scandinavian Institute of Maritime Law, University of Oslo
Just in time for Christmas, on 18 December 2014, the Court of Justice of the European Union (CJEU) handed down its Opinion 2/13 on the Union's planned accession to the European Convention on Human Rights (ECHR). To the surprise of most, the CJEU found the draft agreement on the accession of the Union to the ECHR incompatible with the Union's primary (read: constitutional) Law.
Not only did the CJEU find the accession agreement incompatible with the Union's constituent treaties. Its Opinion reads like a direct and unequivocal attack on the accession agreement and, as I will come back to, it seems to be very difficult to satisfy the CJEU's objections by way of amending the accession agreement. Instead of the expected Christmas present of a signable accession agreement, the Court brought the negotiators a bag of coal.
Outrage in the academic blogosphere
The CJEU's Opinion has not been well-received in the scholarly community. Academics that have been following the EU-ECHR accession process more or less unanimously panned the Court's Opinion.
Steve Peers describes it as "fundamentally flawed", and concludes that "EU accession to the Convention, in the terms defined today by the CJEU, could only appeal to those who don’t like human rights very much". Sionaidh Douglas-Scott shares this conclusion, also pointing out that "the ECJ appears to be opposing ECHR accession for fear this might result in a loss of its sovereignty – a position uncannily similar to that taken by UK eurosceptics, who desire ECHR membership only on their own terms". Tobias Lock laments the CJEU's "externalization of internally resolvable issues", which is "new and worrying because it makes the EU a difficult partner to deal with" in international negotiations. Walter Milch is also very critical, concluding that "none of the Court’s arguments is compelling, some can be attributed to its exaggerated cautiousness, some, however, are utterly ill-founded".
I generally subscribe to these critical remarks. In this post it is therefore not necessary for me to to try and grapple with all the legal issues the Court dealt with in Opinion 2/13. Rather, I intend to critique some particular aspects of the Opinion, as well as offer some thoughts as to what the future holds for EU accession to the ECHR. For those looking for a complete overview over the Court's reasoning, plenty have already been published in blog form. I would in particular recommend reading the excellent summary written by Sionaidh Douglas-Scott on Verfassungsblog.de. Reading that summary – or even better: the judgment itself – is probably a prerequisite for fully appreciating the discussion below.
Examining The CJEU's approach in Opinion 2/13
In my view, the approach and mood of Opinion 2/13 is that of EU legal exceptionalism. At first glimpse this might seem unsurprising, given the exceptionalism the CJEU displayed in previous rulings, notably in its Kadi jurisprudence. However, in Joined cases C‑584/10 P, C‑593/10 P and C‑595/10 P Kadi (II)  the CJEU's display of exceptionalism was grounded in the Charter of Fundamental Rights, which the Court in that case emphasized as a part of primary EU law that it was obliged to apply (see e.g. Kadi (II) at para 97).
In Opinion 2/13, however, the CJEU's approach is an opposite form of exceptionalism. Fundamental rights-oriented arguments are suddenly purged from the Court's reasoning. The CJEU's general approach to all issues at hand seems to be stuck in a clearly pre-Lisbon mindset, overlooking the fact that fundamental rights are among the constitutional values of the Union and that the Charter of Fundamental Rights now forms part of primary Union law. In the bizarro world of Opinion 2/13 traditional principles and rules of EU law seem to consistently trump fundamental rights – even though the issues at hand and the constituent treaties of the Union post-Lisbon clearly call for a balancing approach.
Moreover, when interpreting the draft accession agreement the CJEU seems to always choose the interpretation that would be most at odds with the traditional principles of EU law that the CJEU seeks to protect. Instead of trusting that the judges of the European Court of Human Rights (ECtHR) will interpret the accession agreement as the drafters intended, the CJEU takes a markedly skeptical interpretative approach.
In both these respects "it seems as though the Court was determined to put a spanner in the works of the accession agreement", as Lock points out.
The remainder of this post is devoted to substantiating these claims by analyzing what I believe to be the three most prominent examples of this mindset in the Opinion.
Example 1: Accession and mutual trust in the Area of Freedom, Security and Justice (Opinion paras 191-194)
A good illustration of the CJEU's approach may be found early in the judgment, when it deals with the question of whether accession to the ECHR could upset the principle of mutual trust in the Area of Freedom, Security and Justice.
This discussion provides a telling illustration of the CJEU's approach: It asserts that the accession agreement does not take due regard to the principle of mutual trust in AFSJ matters that, according to the Court, "is of fundamental importance in EU law" (Opinion para 191). Fundamental rights are seemingly regarded as subordinate to the mutual trust principle, applicable only "in exceptional circumstances" (Opinion para 191).
According to the Court, accession could therefore "upset the underlying balance of the EU" (Opinion para 194). The apparent reason for this is that, when implementing Union law in a post-accession world, EU member states could increasingly begin checking whether other member states have actually, in a particular case, observed the applicable fundamental rights guarantees (Opinion paras 191-192). In practice this could for example arise in a case where a person subject to an European Arrest Warrant attempts to prevent extradition by arguing that the extradition would violate the principles of non-refoulement (CFR article 4; ECHR article 3) or ne bis in idem (CFR article 50; ECHR Protocol 7, article 4).
In reality, though, it is difficult to see why this is not the case even today. According to articles 52(2) and 53 of the Charter, the rights enshrined therein are already as a matter of substantive law (at least) at parity with the ECHR. The Charter is also part of primary EU law, and thus has a rank in the Union's legal hierarchy that is equal to that of the principle of mutual trust. Wouldn't the EU member states then already be under an obligation to, when appropriate, check that other member states have observed the applicable fundamental rights guarantees in individual cases?
Moreover, as Peers writes:
"It’s striking that the ‘values’ of the EU – which are a condition for EU membership, and which could lead to suspension of a Member State in serious cases – include human rights and related principles. There’s no mention of the primacy of EU law, of mutual trust in JHA matters [...]. And for [AFSJ] in particular, the Treaty drafters provided in Article 67(1) TFEU that the EU must ‘constitute an area of freedom, security and justice with respect for fundamental rights’. The Treaty doesn’t give priority to mutual trust over human rights – quite the opposite."
That the CJEU does not engage with TFEU article 67(1) at all in its opinion, let alone refer to it, is quite revealing of the Court's approach.
Example 2: The "prior involvement"-procedure and the CJEU (Opinion paras 236-248)
One of the key issues that the accession agreement had to deal with was how to avoid situations where an admissible case could be filed at the ECtHR without any prior involvement of the CJEU. This could for example happen in the following scenario: Imagine that a case is brought before the domestic courts of an EU member state, arguing that a regulation of Union law is incompatible with the ECHR. The domestic courts uphold the EU law provision, without asking the CJEU to give a a preliminary ruling on the matter. (This may occur despite the seeming obligation of domestic apex courts to refer cases concerning Union law to the CJEU, as stated in TFEU article 267, by applying the CILFIT exception.) If the case is then brought to Strasbourg, with the applicant arguing that the member state violated the ECHR by applying the contested regulation as part of its domestic law, the ECtHR might have to interpret Union law in order to decide whether it is indeed compatible with the ECHR.
That the ECtHR would have to interpret Union law with guidance only from domestic courts, and not the CJEU, was and is seen as problematic by many. In particular because the ECHR would post-accession form part of Union law and be binding on the institutions of the Union - including the CJEU (see TFEU 216(2)). Coupled with the fact that international agreements are ranked between primary and secondary Union law, some fear that the ECtHR's interpretations of secondary law could become binding on the CJEU. This risk was highlighted in the CJEU's "discussion document" (para 8-9), published on the Court's website during the early days of the negotiations.
On a theoretical level there is good reason for being skeptical towards this argument. Interpretation of domestic law is really not within the ECtHR's mandate. Since it is an international court, domestic law is more akin to evidence from its point of view (and Union law would according to the accession agreement be treated as the domestic law of the EU). Even in cases where the ECtHR does have to interpret domestic law, e.g. due to the lack of prior interpretation by domestic courts, the ECtHR's interpretations cannot be seen as binding on the domestic courts. It is plainly outside its jurisdiction to interpret domestic law with binding effect. A misinterpretation of domestic law can therefore be corrected in later cases, by domestic courts.
Despite such theoretical objections, the drafters of the accession agreement played it safe by including a provision in article 3(6) that aims to ensure the prior involvement of the CJEU in all cases before the ECtHR where Union law is at issue. Designing this prior involvement procedure was quite difficult, especially when it came to the conditions for triggering it. After lengthy negotiations the following text was agreed upon:
"In proceedings to which the European Union is a co-respondent, if the Court of Justice of the European Union has not yet assessed the compatibility with the Convention rights at issue of the provision of European Union law as under paragraph 2 of this Article, sufficient time shall be afforded for the Court of Justice of the European Union to make such an assessment, and thereafter for the parties to make observations to the Court. The European Union shall ensure that such assessment is made quickly so that the proceedings before the Court are not unduly delayed. The provisions of this paragraph shall not affect the powers of the Court."
The CJEU found this provision insufficient, and incompatible with the Union's constituent treaties, on the ground that it does not enable the specific characteristics of the EU and EU law to be preserved – for two separate reasons. It is particularly the second of those reasons that deserve attention for the present purposes (Opinion paras 242-247).
The CJEU's objection there hinges on the interpretation of the phrase "not yet assessed the compatibility [...] of the provision", which it interprets as "in essence, to rule on the validity of a legal provision contained in secondary law or on the interpretation of a provision of primary law" (Opinion para 242 i.f.). According to the CJEU (Opinion para 243):
"It follows from this that the agreement envisaged excludes the possibility of bringing a matter before the Court of Justice in order for it to rule on a question of interpretation of secondary law by means of the prior involvement procedure."
This is an exceptionally narrow interpretation of the provision. The entire object of the provision is to ensure that the CJEU can ensure the compatibility of Union law with fundamental rights and the ECHR, and if this is best achieved through (conform) interpretation of secondary law there is no reason why this should be fall outside the CJEU's jurisdiction. The CJEU, however, plainly refuses to resort to any sort of teleological reasoning along these lines, and the end result is arguably a bad faith interpretation.
It is, moreover, difficult to see how it is at all possible to decide on the compatibility of a provision of secondary law with fundamental rights (primary law) without interpreting the provision of secondary law. As all lawyers dealing with conflicts of law should know, both the allegedly conflict provisions have to be interpreted in order to identify whether there is an actual conflict.
Yet again we thus see traces of the CJEU being set on rejecting the accession agreement, and then using all the tools and dirty tricks at its disposal to do so.
Example 3: ECHR Protocol 16 and the risk of circumventing TFEU article 267 (paras 196-200)
After the accession agreement was finalized, two additional protocols to the ECHR have been finalized. The optional Protocol 16, which at the time of writing has yet to be ratified by a single state, was brought up during the hearings on the accession agreement. It is quite innovative, since it will allow domestic apex courts to ask the ECtHR to give preliminary ruling as to how a provision of the ECHR should be interpreted.
The CJEU was markedly unhappy about this protocol. It considered that, if EU member states chose to opt in to it, it would open up an avenue for "forum shopping" (Opinion para 198):
"In particular, it cannot be ruled out that a request for an advisory opinion made pursuant to Protocol No 16 by a court or tribunal of a Member State that has acceded to that protocol could trigger the procedure for the prior involvement of the Court of Justice, thus creating a risk that the preliminary ruling procedure provided for in Article 267 TFEU might be circumvented, a procedure which, as has been noted in paragraph 176 of this Opinion, is the keystone of the judicial system established by the Treaties."
It is tempting to ask whether it really is, as the CJEU asserts, necessary for the protection of the autonomy and specific characteristics of Union law to prevent any encroachment, however slight, upon TFEU article 267. As the CJEU itself admits, and as I have also argued earlier, the prior involvement procedure would trigger if a domestic apex court makes a request to the ECtHR under Protocol 16. The CJEU's involvement would therefore be safeguarded, despite the attempted "forum shopping". But for the CJEU it is apparently not its involvement that is of most importance, but rather where the request to be involved is coming from. At least to me this does not seem terribly convincing.
A second point is that the CJEU seems to fear disloyalty from the apex courts of the EU member states. But it is difficult to understand why the fear of disloyalty could not be dealt with through clear instructions from the CJEU to the apex courts. Alternatively, the CJEU could have solved the problem by stating in its Opinion that the EU member states have an obligation not to accede to Protocol 16. Such an obligation could, as I have pointed out before, be based on the duty of sincere cooperation under TEU article 4(3).
In this example we see that the CJEU chooses conflict over pragmatic solutions. We also observe that it externalizes issues that should, at least in my view, have been solved internally. One can only hope that the latter is not part of a large trend. As pointed out by Lock, "[t]his externalization of internally resolvable issues is new and worrying because it makes the EU a difficult partner to deal with". However, rather than being the start of a new trend, I would bet that this is just another example of the CJEU bending the legal framework in order to reach the result it desires.
As the above examples illustrate, the CJEU's reasoning in Opinion 2/13 is indeed flawed and overtly hostile towards the accession agreement. The Opinion reads as if the Court was set on a particular outcome, which it then sought to justify in legal language. It only managed to achieve that goal by applying an interpretative approach that significantly and disappointingly downplays the role of fundamental rights in EU law post-Lisbon. This is not only against the grain of the constituent treaties, but also against the grain of recent CJEU case-law, e.g. Kadi (II) and N. S. (but see Case C-129/14 PPU Spasic , which was recently summarized and criticized by Angelo Marletta on the European Law Blog).
One may wonder why the CJEU's reasoning is so clearly hostile to accession agreement. Given that the CJEU during the negotiations submitted its views on how an accession agreement should be designed, and seemingly got all its wishes granted by the negotiators, the clarity and hostility is surprising. It is not as if the CJEU's conclusion is the only possible one, as illustrated by the Views of Advocate General Juliane Kokott. She considers the accession agreement to be compatible with the constituent treaties, provided that some slight adjustments are made.
My best guess is that the reason for the CJEU's clarity is that there was a dissent among the judges. Because dissents are not to be made public, the judges will usually attempt to come to a compromise solution that is acceptable to them all. This allows judges that would otherwise dissent a strengthened opportunity to water down the judgment, or make its reasoning more ambiguous. However, if a compromise cannot be reached, then the majority will write the judgment.
Given the hostile approach of the CJEU in Opinion 2/13, I believe that we are reading a majority opinion. How big or small that majority is we will probably never know.
The future of the EU-ECHR accession process
Opinion 2/13 leaves the negotiators with a difficult task. It is likely that the negotiations on the accession agreement will restart, but I sincerely doubt whether the non-EU state parties to the ECHR will accept the amendments that the CJEU is asking for. I am in particular thinking of the Court's suggestion that the ECHR should be subordinate to the principle of "mutual trust" in AFSJ matters and the apparent need for excluding the CFSP from the ECtHR's jurisdiction altogether. Moreover, there are some of the problems identified by the Court that it would perhaps not even be possible to solve in the accession agreement.
The most attractive option therefore seems to be an amendment of the constituent treaties of the Union. Leonard Besselink suggests that a "notwithstanding protocol" should be added to the TEU/TFEU, with the following text:
"The Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms, notwithstanding Article 6(2) Treaty on European Union, Protocol (No 8) relating to Article 6(2) of the Treaty on European Union and Opinion 2/13 of the Court of Justice of 18 December 2014."
Personally, I think a cleaner but still sufficient amendment would be to just remove the second sentence of TEU article 6(2), as well as Protocol (No 8). That should send a clear enough signal from the masters of the treaties to the CJEU.
(Cross-posted at my personal blog.)