The Court of Justice rejects accession of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms

The Draft Agreement on the Accession (Accession Agreement) of the European Union (EU) to the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) was rejected by the Court of Justice of the European Union (CJEU) via its Opinion no. 2/13, 18 December 2014¹.

The Agreement on the Accession refers to the decision of the Council, 4 June 2010, which authorised the opening of negotiations by the European Commission regarding the EU accession to the ECHR. On 5 April 2013, the said negotiations led to an agreement between the negotiators on the accession instruments, and in such context on 4 July 2013 the European Commission requested an opinion from the CJEU, pursuant to Article 218(11) of the Treaty on the Functioning of the European Union (TFEU)², regarding the compatibility of the Accession Agreement with the Treaties.

The CJEU in its opinion, after recalling that the absence of a legal basis for the accession of the Union to the ECHR was surpassed by Article 6(2) of the Treaty on European Union (TEU)3, as amended by the Lisbon Treaty, identifies several legal reasons which, under its reasoning, invalidate the Accession Agreement.

First, the Accession Agreement to the ECHR would cause the EU to be subject to external supervision, thus the EU and its institutions, including the CJEU and its respective rulings, would be subject to supervision mechanisms foreseen in the European Convention. In this framework the CJEU considers that the Accession Agreement would hinder the autonomy of the EU’s legal order and would cause the CJEU to be bound via international law to rulings of the European Court for Human Rights (ECtHR), while the reverse does not happen (ECtHR subject to CJEU’s judicial decisions). In this regard the CJEU states that “it should not be possible for the ECtHR to call into question the Court’s [ECJ] findings in relation to the scope ratione materiae of EU law for the purposes, in particular, of determining whether a Member State is bound by fundamental rights of the EU” (para. 186).

The CJEU also highlights, grounded on the principle of legitimate expectations, that “[i] n so far as the ECHR would, in requiring the EU and the Member States be considered Contracting Parties not only in their relations with Contracting Parties which are not Member States of the EU but also in their relations with each other, including where such relations are governed by EU law, require a Member State to check that another Member State has observed fundamental rights, even though EU law imposes an obligation of mutual trust between those Member States; accession is liable to upset the underlying balance of the EU and undermine the autonomy of EU law” (para. 194).

Also based on the ECHR rules (Protocol no. 16) which authorise the highest courts and tribunals of the Member States to request the ECtHR to give advisory opinions on issues related to the interpretation or application of rights and freedoms guaranteed by the ECHR, the CJEU found that such requests could affect the autonomy and the efficiency of the preliminary ruling procedure foreseen in Article 267 TFEU, which confers on the CJEU the competence to rule on the interpretation of the Treaties and the validity and interpretation of the acts adopted by EU institutions or bodies.

Based on Article 344 TFEU (“Member States undertake not to submit a dispute concerning the interpretation or application of the Treaties to any method of settlement other than those provided for therein”) the CJEU states, cumulatively, that the ACCESSION AGREEMENT does not foresee that the ECHR rules are not applicable to disputes between Member States and the latter and the Union, considering that it “still allows for the possibility that the EU or Member States might submit an application to the ECtHR, under (...) the ECHR, concerning an alleged violation thereof by a Member State or the EU, respectively, in conjunction with EU law” (para. 207), which, according to the CJEU, breaches the referred Treaty rule.

The mechanism to act against Member States and/or the EU before the ECtHR is also subject to criticism by the CJEU, as this supervision, in terms of procedural legitimacy, would be made by the ECtHR, and the Strasbourg court “would be required to assess the rules of EU law governing the division of powers between the EU and its Member States as well as the criteria for the attribution of their acts or omissions, in order to adopt a final decision in that regard which would be binding both on the Member States and on the EU” (para. 224). In accordance with the CJEU, such supervision would be “liable to interfere with the division of powers between the EU and its Member States” (para. 225).

The CJEU also considers that it is within its sphere of competence to “provide the definitive interpretation of secondary law, and if the ECtHR, in considering whether that law is consistent with the ECHR, had itself to provide a particular interpretation from among the plausible options, there would most certainly be a breach of the principle that the Court of Justice has exclusive jurisdiction over the definitive interpretation of EU law” (para. 246). In other words, the CJEU found that the interpretation of the secondary legislation cannot be made ultimately by the ECtHR – as the competence for adopting the last jurisdictional decision belongs to CJEU (the competenz-competenz).

The CJEU also highlights, as a final argument to rule out the validity of the Accession Agreement, based on the TEU rules on Common Foreign and Security Policy (CFSP), that the TEU confers on the EU court limited judicial review powers – in particular the competence to rule on the legality of decisions providing for restrictive measures against natural or legal persons adopted by the Council (in accordance with Article 275 TFEU), as there are acts adopted under the CFSP which, pursuant to the Treaties, fall outside CJEU’ judicial control. However, as a result of the Accession Agreement, and in the opinion of the CJEU, “the ECtHR would be empowered to rule on the compatibility with the ECHR of certain acts, actions or omissions performed in the context of the CFSP, and notably of those whose legality the Court of Justice cannot, for want of jurisdiction, review in the light of fundamental rights” (para. 254), thus conferring competence for judicial review to “a non-EU body” (para. 255). According to CJEU, such a situation is not admissible, because the Luxembourg court considers that “jurisdiction to carry out a judicial review of acts, actions or omissions on the part of the EU, including in the light of fundamental rights, cannot be conferred exclusively on an international court which is outside the institutional and judicial framework of the EU” (para. 256). Thus, for the above summarised reasons, the CJEU found that the Accession Agreement is not compatible with the TEU and the TFEU.

This binding opinion adopted by the CJEU, under Article 218(11) TFEU, puts an end to the aspirations of 28 Member States, and consequently of 500 million citizens, regarding the EU’s accession to the ECHR, leading the EU and its institutions, including the judiciary, to be immune to the scrutiny of the ECtHR.

Thus, it now remains to be known whether the CJEU’s opinion:
(i) does not create insurmountable barriers to the EU’s accession to the ECHR, considering the interpretation adopted by the CJEU on the Treaties’ rules, which potentially can only be surpassed through a lengthy and complex process of amendments to the EU Treaties by Member States (intergovernmental conferences and ratification by each Member State); and
(ii) if the tight sieve established by the CJEU and the large number of reservations that should be provided by the EU to accede to the ECHR – and if those are accepted by the members of the Council of Europe, which comprises several countries that are not part of the EU – it would not deplete the ECtHR’s supervisory powers in the context of the review of actions and omissions of the EU to the detriment of the ECHR and of the seminal jurisprudence of the ECtHR on individual rights and freedoms.

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