Abstract
At the time when this book was almost completely finalized, the Luxembourg Court issued its Opinion 2/13 on the compatibility of the DAA with the EU Treaties. The author of the book was advised by his supervisors to examine this opinion in a subchapter and to compare its stances with the book’s core arguments (where applicable). This said, the book has been devised from a position where there was no opinion in place—and it still continues to have its academic relevance with those findings—however, it is important to give some taste to the book on the conclusion of the Luxembourg Court which should at least be considered from a comparative perspective against this book’s most important findings. As of the time of finalizing this book, there was no other development except Opinion 2/13 which would have added upon this policy perspective. This said, one should not read the Opinion as negating the accession process or its intention and the current accession agreement: it merely should serve as a list of requirements that will finally add and revise some of the minor issues in the Accession Agreement to make it compliant with the ‘allergic’ wish of the Luxembourg Court. In this subchapter, the book examines each substantive part of the Opinion and suggests certain arguments which either criticize or support the Court’s findings. In the final part of this subchapter, the book proposes a list of nine concrete amendments (either in the form of revisions to the current provisions or in the form of supplementary provisions that need be added to the DAA) to make the current DAA compliant with the Opinion 2/13.
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Notes
- 1.
Court of Justice of EU, Opinion 2/13 (Accession of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms—Compatibility of the draft agreement with the EU and FEU Treaties). Opinion of the Court (Full Court) of 18 December 2014, para. 1.
- 2.
Opinion of AG Kokkot, in case: Court of Justice of EU, Opinion 2/13, delivered on 13 June 2014, para. 280.
- 3.
By naming the Convention system as an ‘external democratic control’, the book does not intend to make a difference between the Luxembourg and Strasbourg in terms of democratic credentials, or even name the latter as more democratic than the former. The intention is rather to explicate the fact that in a European democracy landscape, there is always the need to formally—at least—comply with external human rights law systems, like the Convention system. Such fact—although it may have formal value in face of the EU, as many would say—amounts to the idea that even though a certain policy has sufficient internal democratic mechanisms (e.g. the EU), it still needs to become exposed to an external human rights control system like the Convention system in order to tie up the an overarching approach to the protection of human rights. Such external democratic control is therefore a must, even though in certain cases such as the EU it may have merely a formal relevance.
- 4.
Court of Justice of EU, Opinion 2/13, op. cit. note 1, para. 182.
- 5.
Peers (2014).
- 6.
Court of Justice of EU, Opinion 2/13, op. cit. note 1, para. 165.
- 7.
Court of Justice of EU, Opinion 2/13, op. cit. note 1, para. 166 et seq.
- 8.
Court of Justice of EU, Opinion 2/13, op. cit. note 1, para. 170; Cf.: Gragl (2013), p. 57, who in the same line argues that the EU Court has followed a path of argument that basically says that fundamental rights derive from Union law as opposed to an external source of obligation. This being an issue, Gragl rightly points out that the fact that ECHR will remain a minimum standard in terms of its Art. 35 may bring collisions with the EU law primacy when Member States act under the scope of EU fundamental rights obligations. I agree with this stance to the extent that such conflicts may arise, but not to the extent that such conflicts would remain unmanageable under the current set-up of EU law.
- 9.
Court of Justice of EU, Opinion 2/13, op. cit. note 1, para. 184.
- 10.
Court of Justice of EU, Opinion 2/13, op. cit. note 1, para. 187; Cf.: Referring to this provision, Gragl basically notes that this is a conflict resolution norm, which Lenaerts and De Smijter argue represent an indication for the law that should always take precedence over the other. See: See: Gragl (2013), p. 61. The argument of Lenaerts and De Smijter is something I fully agree, adding that such reasoning may lead to the assumption that the Convention may be considered part of the primary law of EU as well (something which has been argued extensively supra in the chapter on the status of ECHR and DAA in EU legal order). Contrary to this, Gragl argues that Art. 53 ChFR also forms part of the principle of EU law primacy, therefore the above argument seems to be rejected by him. However, the mere fact that the Court seeks a sort of coordination between Art. 53 ChFR and the Convention indicates that the Court is somehow accepting a horizontally equal level between the Charter and the Convention, otherwise there would have been no need to seek ‘coordination’ but rather seek to enforce the ‘subordination’ of one to the other.
- 11.
Court of Justice of EU, Opinion 2/13, op. cit. note 1, para. 189.
- 12.
Court of Justice of EU, Opinion 2/13, op. cit. note 1, para. 191.
- 13.
Court of Justice of EU, Opinion 2/13, op. cit. note 1, para. 192.
- 14.
Court of Justice of EU, Opinion 2/13, op. cit. note 1, paras. 193–194.
- 15.
Cf.: One may wonder why the EU and its Member State should become one contracting party to the Convention. This is implied from the Opinion 2/13, which, in para. 194, established that ‘[i]n so far as the ECHR would, in requiring the EU and the Member States to 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.’ This basically points to a system of accession wherein the EU and its Member States are not independent contracting parties but rather one contracting party when it comes to the EU law obligations under the Convention. One may legitimately question why should that be the case in view of the above statement of the Court? As one can read from the above statement, the Court simply does not wish EU to be a normal high contracting party in the Convention system, neither in relation to its members nor in relation to non-EU members as long as that may imply EU’s standing as independent from its member states. Building upon this concern, the only means to address this concern would be to provide to the EU and its Member States one seating in the Convention system wherein neither the EU nor its Member States may stand as independent contracting parties inter se. There seems no other way to address this concern.
- 16.
Court of Justice of EU, Opinion 2/13, op. cit. note 1, para. 196.
- 17.
Court of Justice of EU, Opinion 2/13, op. cit. note 1, para. 197.
- 18.
Court of Justice of EU, Opinion 2/13, op. cit. note 1, paras. 212–213.
- 19.
Cf.: Gragl (2013), p. 279, who rightly advises that there need be adopted detailed rules in EU law to address the loopholes and potential gaps that may harm the EU law autonomy with regard to the operation of the co-respondent mechanism.
- 20.
Court of Justice of EU, Opinion 2/13, op. cit. note 1, para. 222.
- 21.
Court of Justice of EU, Opinion 2/13, op. cit. note 1, paras. 221–225.
- 22.
Court of Justice of EU, Opinion 2/13, op. cit. note 1, para. 224.
- 23.
Court of Justice of EU, Opinion 2/13, op. cit. note 1, paras. 227–228.
- 24.
Cf.: One may rightly question whether the opposite may be true as well, given that the above argument would push the Member States outside their sovereign territory even when they act as agents of EU law and therefore outside their constitutional requirements as well. I tend to disagree with such claim and defer to the above statement made in the main text. First, in principle, Member States would never find themselves in a decision of the Strasbourg Court placing mutual responsibility (resulting from the use of the co-respondent mechanism) on them and the EU unless they had acted in furthering an EU law obligation without exercising state discretion. In that capacity, the Member State(s) have been acting as agents of EU law and undertaking actions on behalf of the EU (and at its cost; DARIO may help here as well). Second, I also argue that if one would follow the Court’s argument and install a system that addresses that difference, it would run counter to the principle of conferred competences in EU law. If Member States were to be considered as acting within their constitutional sovereign competence even when they act as agents of EU law in implementing obligations without state discretion that would basically go to the detriment of the principle of conferred competences (which stands as a core concept of EU law as an independent source of law). Third, if Member States were recognized the right stemming from the Court’s concern, then they would even violate their constitutional principles on international responsibility, which basically prohibit that member states respond for the conduct and wrongdoings of other entities of international law (like the EU). This line of reasoning may be also drawn with regard to the ILC Articles on State Responsibility. This being said, it is noted here that the arguments presented in the main text seem valid.
- 25.
Court of Justice of EU, Opinion 2/13, op. cit. note 1, para. 229.
- 26.
Court of Justice of EU, Opinion 2/13, op. cit. note 1, para. 233.
- 27.
Court of Justice of EU, Opinion 2/13, op. cit. note 1, para. 234.
- 28.
Court of Justice of EU, Opinion 2/13, op. cit. note 1, para. 242.
- 29.
Court of Justice of EU, Opinion 2/13, op. cit. note 1, paras. 246–247.
- 30.
Court of Justice of EU, Opinion 2/13, op. cit. note 1, para. 252.
- 31.
Court of Justice of EU, Opinion 2/13, op. cit. note 1, paras. 254–255.
References
Gragl P (2013) The accession of the European Union to the European Convention on Human Rights. Hart Publishing, Oxford
Peers S (2014) The CJEU and the EU’s accession to the ECHR: a clear and present danger to human rights protection. Blog Article. Available at: http://free-group.eu/2014/12/18/steve-peers-the-cjeu-and-the-eus-accession-to-the-echr-a-clear-and-present-danger-to-human-rights-protection/
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Korenica, F. (2015). Before the Conclusion: Luxembourg Court’s Opinion 2/13 on the DAA’s Compatibility with the EU Treaties. In: The EU Accession to the ECHR. Springer, Cham. https://doi.org/10.1007/978-3-319-21759-8_11
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