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A New Start for the Accession of the EU to the ECHR

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Book cover The EU Accession to the ECHR

  • 1054 Accesses

Abstract

This chapter examines the main steps that provoked the accession process and the debates that surrounded the expression for the need for accession, including the core results that the latter will bear on the EU’s external picture both with regard to the Convention system and international law at-large. Internal changes to the EU position vis-à-vis Member States resulting from the accession process will be also examined vigilantly. This chapter therefore addresses the research question: ‘What are the main changes that the DAA will bring to the EU external image, and what are the core issues settled in the Draft Accession Agreement to this end?’ The chapter begins by analyzing how the need for EU accession to the ECHR was originally articulated, and the rationale for it to be a necessity for the organizational design of the Union. It then turns to the question of the main changes that the treaty system will experience with the EU placed in a state-like contracting position within the ECHR, and how will this affect the external treaty-making landscape of the EU. The chapter carefully analyzes how EU accession to the ECHR will be of a distinct nature, as the ECHR has been conventionally a state-based instrument of international law. Unique arguments are also presented in relation to the changes that international law will experience with the EU situated as a state-like party to a historically state-owned sovereign domain of human rights, namely the Convention system. This is contrasted with the Vienna Convention on the Law of Treaties’ principles, showing how conventional views on treaty-making on human rights may be changed with the EU becoming a contracting party to the ECHR. All this is analyzed in the context of a multilayered human rights law in Europe debate, with the EU cultivating its federal attributes with accession to the ECHR. The chapter then embarks on the issue of treaty competence of the EU to accede to a human-rights instrument, previously a states-reserved domain of law, and the main implications that this process may bring to the EU external image, both vis-à-vis international law but also Member States legal orders. The chapter subsequently offers a Convention-based outlook on the structural changes that EU accession therein will generate, upholding the argument that the Convention will not only become a hybrid, but rather complex treaty system. Afterwards, the chapter embarks on an examination of the post-accession relationship between the EU, ECHR and EU Member States, arguing that the position of the EU will be strengthened post-accession, with the judicial dialogue being shifted from Member States-Strasbourg to a Luxembourg–Strasbourg orientation.

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Notes

  1. 1.

    Greer and Williams (2009), p. 464.

  2. 2.

    Accord.: Krüger (2002–2003), p. 94, who argues that accession will improve EU’s political image as the latter remains the only uncontrolled human rights entity in Europe; See also: Odermatt (2014a), p. 15.

  3. 3.

    Robert Schuman, Declaration of 9 May 1950.

  4. 4.

    E.g.: Lavranos (2006b), p. 242; Although there have been huge criticisms on the EU’s capacity to provide for human rights protection against the fundamental economic freedoms, reference should be made to Kadi II judgment of the Luxembourg Court, wherein it established that even UN law when EU implements it without discretion is reviewable from the perspective of ius cogens EU treaties’ norms—in order to offer fundamental human rights protection—with the prime intention of preserving its own autonomous authority. This must therefore be read as a strategy via which the Luxembourg Court ‘drafted fundamental rights to defend and justify that autonomy with a normative layer absent in the early, more formal reasoning supporting that autonomy: EU law must be autonomous if it is to be a bulwark for fundamental rights.’ (Cuyvers 2011, pp. 485 et seq).

  5. 5.

    Harding (2000), p. 135.

  6. 6.

    Although the EU Court had determined itself to take into account the ECHR. See e.g.: Court of Justice of EU, Case C-94/00 Roquette Freres [2002] ECR I-9011 and Court of Justice of EU, Case C-276/01 Steffensen [2003] ECR I-3735, para. 72; On the academic appeal in favor of accession, see: van den Berghe (2010), p. 112.

  7. 7.

    E.g.: de Búrca (2011), p. 693, who argues that human rights law forms the EU’s international identity, and a distinguishing feature of it in general.

  8. 8.

    Memorandum on the accession of the European Communities to the Convention for the Protection of Human Rights and Fundamental Freedoms.COM (79) 210 final, 2 May 1979. Bulletin of the European Communities, Supplement 2/79. [EU Commission—COM Document], pp. 11 et seq; One needs to point that a form of cooperation and understanding between the two regimes has existed far before accession, but not at an institutionalized level. On the latter, see generally: Morijn (2006), p. 25; See also: Lock (2010), p. 777; Quirico (2010), p. 31; Contra to the argument for the need on accession of EU to ECHR, see: Balfour (2007), p. 187, who proposes that the accession process must rest instead concentrating on the reconciliation of the two courts.

  9. 9.

    Besides EU institutions, accession was also supported by scholars and even some of the judges of Strasbourg Court. See: Balfour (2007), p. 212.

  10. 10.

    E.g. Peers (2006), p. 443; See also: Gragl (2013), pp. 76 et seq, who argues that Opinion 2/94 does not consider the issue of EU accession to ECHR from the perspective of EU law autonomy with special reference especially to Opinion 1/91. Gragl argues that Opinion 2/94 merely concludes that as the treaties stood at that time accession was not authorized, whereas, if accession takes place, it would produce significant constitutional changes to the EU legal order. This, according to Gragl, was an act that drew on the Member States’ governments concerns. To this extent, Gragl points out that the concerns of the Member States were more about the fact that EU will penetrate into a complex and external institutional system rather than the protection of its autonomy. Such concern, Gragl argues, would still be relevant although the treaties do authorize accession in explicit terms.

  11. 11.

    Muir (2014), p. 222; See also on the political importance for the EU accession to ECHR, at: Krüger (2002–2003), p. 94.

  12. 12.

    Sera (1996), p. 153 (‘[…]accession is the best way to solve the EU’s above-stated problems regarding human rights protection […]’); Krüger (2002–2003), p. 92 (‘The best means of achieving the necessary coherence between the European Convention on Human Rights and Community law is for the European Communities or the European Union to accede to the former.’).

  13. 13.

    Krüger (2002–2003), p. 97; A Memorandum of Understanding between EU and Council of Europe in 2007 attached special significance to the accession of EU to ECHR, mentioning it as an explicit objective of both organizations. See: Memorandum of Understanding Between the Council of Europe and the European Union, 10 May 2007. Available at: http://cor.europa.eu/en/about/interinstitutional/Documents/5fe3aa86-d3c2-4ac2-a39c-c2ea21618ffe.pdf.

  14. 14.

    See e.g., also: Krüger (2002–2003), p. 98, on a condensed list of points that became later parts of the draft accession agreement.

  15. 15.

    Lock (2010), p. 777; See also: Landau (2008), p. 560; Odermatt (2014a), p. 7.

  16. 16.

    E.g.: Sera (1996), p. 180/1; On how the EU needed its democratic claim to become internationally visible, see e.g.: von Bogdandy (2012), pp. 318 et seq; See also: Joris and Vandenberghe (2008–2009), p. 19 (‘Subjecting the EU to the same degree of external scrutiny by the ECtHR would also strengthen the credibility of the EU human rights policy.’).

  17. 17.

    Shelton (2003), p. 125 (ECtHR ‘established that the terms of the Vienna Convention concerning interpretation are applicable to the ECHR because they enunciate “generally accepted principles of international law.”’).

  18. 18.

    On the latter, Cf.: von Bogdandy (2012), p. 324; Cf: Wildhaber (2002), p. 161, on the context and understanding of the role of states in international constitutionalism; See de Búrca’s criticism on how Kadi changes the role of ECJ into one which tries to threaten the ‘effective multilateralism’ in international law, at: de Búrca (2009), pp. 4 et seq; One may certainly argue that should this type of mood be further promoted by CJEU in face of the Strasbourg Court post-accession, it may seriously threaten the effective cooperation which the Accession Agreement intends to establish between the two orders.

  19. 19.

    E.g.: Daniel Hannan had argued that in accordance with the 1933 Montevideo Convention on the Rights and Duties of States, the EU fulfills the criteria of a ‘state’ (Hannan 2010).

  20. 20.

    See e.g. generally: Landau (2008), p. 573; Gragl (2011), p. 69; Quinn (2001), p. 853; Jones (2012), pp. 5–6; Cf.: Alemanno (2010), pp. 468 et seq, where the author examines how Opinion 1/08 defines EU’s competence to act internationally on basis of its Member States’ international obligations (Opinion 1/08 making bold the shared competences); Contra to the argument mentioned in the main text, see: Kumm (2005), p. 304; Cf.: Sera (1996), p. 184, who argues that Germany wanted a federal Europe attached to ECHR as a federal attribution element.

  21. 21.

    Although EU has also e.g. become a party to the World Trade Organization. Cf.: Analysis (1997), p. 237, which argues that based on Opinion 2/94 EU was meant as not being a state and therefore legally incapable of acceding to ECHR. Cf.: Odermatt (2014a), p. 7, who brings the example of the resistance that UN Member States echoed when EU tried to get an equal-footing position with the Member States in the UN General Assembly; some UN Member States resisted due to the allergy that they have towards increasing stateness attitude of the EU, indicating their disagreement with the practice where sovereignty becomes a non-exclusive state concept.

  22. 22.

    E.g.: Roberts and Sivakumaran (2012), p. 120; Cf. on the people-centered doctrine of international law: Grossman and Bradlow (1993), pp. 23–25; See also: Buxbaum (2005), p. 314.

  23. 23.

    See the insistence of an EU Member State’s constitutional court to keep the state-oriented VCLT principles on EU Treaties as the only source for the latter’s constitutional validation, at: Polish Constitutional Court, Polish Membership of the European Union (Accession Treaty), Judgment K18/04 of 11 May 2005, para. 6 et seq; This certainly shows the allergy that national constitutional courts of EU Member States will have towards the increasing capacity of EU as a supranational organization changing the nature of treaty law as well, with constant increasing attributes of a sovereign agent of international law.

  24. 24.

    See by example, at: Licková (2008), p. 467.

  25. 25.

    Accord: Olsen (2009–2010), p. 56, who suggests that EU accession to ECHR will increase the bona fide function and legitimacy of the EU Court towards guarding the legality of EU law; Cf.: Neuman (2008), p. 115 (‘The “humanization” of international law has not proceeded so far as to make international human rights tribunals self-legitimating on the basis of their direct relationship with individual human rights.’).

  26. 26.

    See: Barents (2009), p. 422; Von Bogdandy et al. (2012), p. 492 (‘[..]in a Union based on constitutional pluralism […]’).

  27. 27.

    See generally: Tamanaha (2008), pp. 389 et seq; See also the overlapping jurisdictions between EU, Council of Europe and Member States courts, at: Sweet (2009), p. 637.

  28. 28.

    Accord.: the trend of transformation of state-centered international law towards a more human-right-based international law, at: Petersmann (2002), pp. 32–67; See also: Odermatt (2014b), p. 4 (‘EU accession has great legal significance in this regard since it is the first time that an international organization will formally submit itself to a system of external human rights review.’).

  29. 29.

    Barents (2009), p. 445; See also: Joris and Vandenberghe (2008–2009), p. 31, referring to the term Pan-European legal area.

  30. 30.

    On the global trend of proliferation and use of international tribunals like this, see: Lavranos (2006a), p. 457.

  31. 31.

    The solange formula has been hugely criticized for the lack of substantive human rights protection as in Bosphorus, at: Peers (2006), p. 455; On the vertical relationship between courts as a matter of the solange formula, see: Lavranos (2008), p. 612; Cf.: Besson (2009), p. 258; On the nature of solange between Luxembourg Court and German Constitutional Court, see: Thym (2013b), p. 398; See also on solange with Strasbourg Court: Papangelopoulou (2006), p. 134; and Kokott and Sobotta (2012), p. 1018.

  32. 32.

    Pernice and Kanitz (2004), p. 20.

  33. 33.

    Cf.: Mendez (2010), p. 1719, on the criticisms on the EU’s consideration of international law. See also: Licková (2008), p. 464.

  34. 34.

    Cuyvers (2011), p. 509; See also: van Rossem (2009), p. 219, who legitimately questions how to tackle international treaties which EU should respect because of its Member States’ international obligations but which clash with the EU law; See also: Mendez (2010), p. 1720.

  35. 35.

    Bieber (2009), p. 397.

  36. 36.

    See a request on this, at: Douglas-Scott (2006), p. 252.

  37. 37.

    Something that will lead to the growing notion of ‘European international law’. On the latter’s growth, see: Smith (2007), p. 438; See also generally on these effects: Sera (1996), p. 180.

  38. 38.

    Cf: Dyevre (2013), p. 139; Somewhat a contrary argument on the insistence that the EU is an international organization may be found at: Dijk (2007), pp. 2–4; Accord: Schuman Declaration (Paris, 9 May 1950), which shows some of the above-mentioned tendencies even in written.

  39. 39.

    See e.g.: von Bogdandy (2012), p. 322, who shows how the EU itself has a dual concept of democratic legitimacy. After accession to ECHR, such dual democratic legitimacy becomes even more complex in terms of human rights protection and the legitimacy deriving therefrom; See a similar argument at: Licková (2008), p. 489; See also the overall context of how Member States are becoming limited in space in international law due to these legal situations, at: Neframi (2010), pp. 323–359.

  40. 40.

    E.g.: The German Federal Constitutional Court insisted that the EU powers may not go so far as to hamper the constitutional identity of Germany as an EU Member State. If applied against the issue of human rights domain, one may argue that the German Court would argue through Gauweiler that accession of the EU to the ECHR may not go beyond the powers set on EU by the Treaties, as that would simultaneously violate Art. 4(2) TEU. With this in mind, one may not look at the human rights external identity of EU in face of ECHR as going so far as to violate the portrait of Member States’ constitutional identity. See: BverfG, 2 BvE 2/08 Gauweiler v Treaty of Lisbon, Judgment of 30 June 2009, paras. 240 and 339.

  41. 41.

    Sabel and Gerstenberg (2010), p. 511; Cf.: Gragl (2013), p. 56, who argues that both Omega and Schmidberger prove that the Luxembourg Court has a wealthy experience of giving precedence to fundamental rights over EU-law economic freedoms, the latter being crucial for the maintenance of the EU common market.

  42. 42.

    A case which should make the Luxembourg Court accept the primacy of Strasbourg Court as regards fundamental rights, may be found e.g.: Lavranos (2006b), p. 243.

  43. 43.

    Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations. Done at Vienna on 21 March 1986. Not yet in force.

  44. 44.

    Referring to Akehurst, Gragl notes that this instrument—although still not legally effective—may be considered as forming a declaratory part of customary international law. See: Gragl (2013), p. 89.

  45. 45.

    Draft Articles On The Law Of Treaties Between States And International Organizations Or Between International Organizations With Commentaries 1982. Text adopted by the International Law Commission at its 34th session, in 1982, and submitted to the General Assembly as a part of the Commission’s report covering the work of that session (at para. 63). The report, which also contains commentaries on the draft articles, appears in Yearbook of the International Law Commission, 1982, vol. II, Part Two, p. 24.

  46. 46.

    E.g.: van den Berghe (2010), p. 149.

  47. 47.

    As set in Demirel, where the Court ruled: ‘although it is the duty of the Court to ensure observance of fundamental rights in the field of Community law, it has no power to examine the compatibility with the European Convention on Human Rights of national legislation lying outside the scope of Community law.’ Court of Justice of EU, Demirel V Stadt Schwäbisch Gmünd, Case 12/86, Judgment Of The Court, 30 September 1987, para. 28.

  48. 48.

    Barents (2009), p. 441.

  49. 49.

    Cf.: Dimopoulos (2011), pp. 64 et seq, to compare this with the inter and intra-EU investment agreements, many of which may be of bilateral nature.

  50. 50.

    Harding (2000), p. 145; See also: Quirico (2010), p. 33.

  51. 51.

    AG Jacobs Opinion para 22, in Court of Justice of EU, Case 5/88, H. Wachauf v. Germany, of 13 July 1989; See also: Court of Justice of EU, Baustahlgewebe GmbH v Commission of the European Communities, Case C-185/95, [1998] ECR 8417, where the court relies explicitly on Strasbourg’s standards.

  52. 52.

    E.g.: Albi (2009), p. 63/4; See also: Eckes (2013), p. 280.

  53. 53.

    See generally the concept on this: LB and JHR (2008), p. 203; Craig (2013), p. 1140/1; See also: Conforti (2010), p. 84; Cf.: On possible scenarios with the doctrine of equivalent protection post accession, see: Quirico (2010), p. 42; See also on the ‘equivalent protection’: Gragl (2013), pp. 70 et seq.

  54. 54.

    Martin (2004), p. 270; See a similar argument on pan-European human rights landscape based on the accession context, at: White (2010), p. 435.

  55. 55.

    Eckes (2012), p. 232.

  56. 56.

    Eckes (2013), p. 265.

  57. 57.

    One additional example brought into another perspective, but relevant for this analysis, is Gragl’s point. He argues that post-accession national judges will have to consider better the accession ramifications and issues, which will bring major impact to their work and interaction with EU law. One such major impact is the fact that national courts will need to tighten their policy on posing preliminary reference questions to the Luxembourg Court, as, the failure to do so, may well put that Member State in the terrain of violations of ECHR for which the EU would not need to maintain any burden. See: Gragl (2013), p. 279.

  58. 58.

    Komárek (2013), p. 421, showing how there is an ongoing empowerment of the Luxembourg Court’s position against the Member States’ courts, something flowing from the rather rigid application of the principles of primary and direct effect of EU law; Cf.: A leading remark for the border of the scale of primus that the EU may capture in this regard is Art. 4(2) TEU, which states that: ‘The Union shall respect the equality of Member States before the Treaties as well as their national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government. It shall respect their essential State functions, including ensuring the territorial integrity of the State, maintaining law and order and safeguarding national security. In particular, national security remains the sole responsibility of each Member State.’.

  59. 59.

    Eckes (2013), p. 265.

  60. 60.

    See: Article 351 TFEU, wherein the Member States are requested to remain loyal to the recognition of EU law supremacy; See generally, also: Court of Justice of EU, Intertanko, C-308/06, [2008] ECR I-4057; Accord: Reestman (2005), p. 104.

  61. 61.

    Cf.: Lavranos (2008), p. 612 (‘[…] the Strasbourg Court ‘applied the Solange method in its Bosphorus judgment for regulating its horizontal jurisdictional relationship vis-à-vis the ECJ.’).

  62. 62.

    Although one needs to note that the concept of supremacy of EU law is being criticized for its narrowness. It is now being suggested that the EU-law picture is rather a legal pluralism system, at: Gerards (2011), p. 80/1.

  63. 63.

    E.g.: Alter (1998), pp. 135 et seq, questioning whether the Member States may regain the authority over the Luxembourg Court. Compare this to the end result of the EU accession to ECHR, and the international law role that the Luxembourg Court will attain in face of the EU Member States’ courts.

  64. 64.

    See e.g. on the duty of loyal cooperation in this context: Eckes (2013), p. 272.

  65. 65.

    Having estimated this, the Czech Constitutional Court argued that it ‘must emphasize that Article 216 [article on the capacity of EU to enter into international treaties], because of its vagueness, is on the borderline of compatibility with the requirements for normative expression of a legal text that arise from the principles of a democratic, law-based state. The Constitutional Court […asserted…] that this transfer must be delimited, recognizable, and sufficiently definite. It is precisely the ‘definiteness’ of a transfer of powers to an international organization that is quite problematic in Article 216 TFEU’. See: Czech Constitutional Court, US 19/08 Treaty of Lisbon, Judgment of 26 November 2008, para. 186; This estimated vagueness noted by the Czech Constitutional Court may have led to a sort of growth of EU’s international personality in a way which may have not been permitted initially by the Masters of its Treaties. The DAA may be one such example.

  66. 66.

    Cf: Liisberg (2002), pp. 1172 et seq, to see why some argue—as opposed to the argument of the author—that more human rights protection within and for the EU could result in threatening the EU law supremacy; To note, the German jurisprudence, on the other hand, insists that ‘supremacy of EU law is therefore limited by the [national] constitutional authorization.’ Payandeh (2011), p. 12; Cf.: Neframi (2010), pp. 323–359, on how Member States of EU are becoming limited in their external relations as a result of the growing EU position in international law.

  67. 67.

    Balfour (2005), p. 22; Contra: Bieber (2009), p. 392/3, wherein it is argued that it is rather hard for the Luxemburg Court to use the principle of supremacy of EU law as a means to impair the sovereign constitutional character of the Member States’ legal orders. This argument does not, however, as such contradict this book’s point, as it merely connotes to a situation without the external picture in place such as the Convention system; Cf. Weiß (2011), p. 65, arguing that with the Lisbon Treaty and the new position of the Convention in the EU law, even member states’ legal orders will see their positions subsumed more to the Convention; See also Art. 47 TEU, as one of the core innovations and developments of the Lisbon Treaty in this regard.

  68. 68.

    Eckes (2012), p. 231.

  69. 69.

    A good example on this would be the assertion of the Czech Constitutional Court’s ‘argument’ on the renowned Lisbon case, where it argued that transformations which advance the EU legal position in face of the Member States should be read in this language: ‘[The] transfer of certain state competences that arises from the free will of the sovereign and will continue to be exercised with the sovereign’s participation in a manner that is agreed upon in advance and is reviewable, is not ex definitionem a conceptual weakening of the sovereignty of a state, but, on the contrary, it can lead to its strengthening within the joint actions of an integrated whole.’ Lisbon Decision of the Czech Constitutional Court, quoted from: Bříza (2009), p. 149; Such argument seems rather formal and intended to calm the troubled waters from the EU’s constitutional expansion, rather than a legally substantive point.

  70. 70.

    Eckes (2013), p. 284; Heifer and Slaughter (1997), pp. 273 et seq; Although this may not arrive at a point wherein national courts will be seriously dismissed from playing a crucial role; Cf.: Alter (1998), p. 121, who argues that there is no doubt that the Luxembourg Court is an influential international court, something that is thought to be beyond a normal international tribunal; Cf. Olsen (2009–2010), p. 56, who argues that a jurisdictional conflict between the two courts over their primacy should not be underestimated.

  71. 71.

    Cartabia (2009), p. 17.

  72. 72.

    On the increased primacy that Strasbourg Court is supposed to gain over Luxembourg Court in the human rights law domain, see e.g.: Schimmelfennig (2006), p. 1248; See also a note on pre-accession communication between the two courts: Martín and De Nanclares (2013), p. 2/3 (‘Until now this has been based not so much on specific legal texts but rather a sort of legal dialogue’ [between the two courts]); Cf.: On the contrary, one must also raise the point that accession may perhaps produce the ‘sandwich effect’, as Luxembourg Court will become controlled from now on two sides: one, Member States constitutional courts through their solange formula, and two, Strasbourg Court through its external control mechanism. See on the latter: Martín and De Nanclares (2013), p. 16.

  73. 73.

    Court of Justice of EU, Opinion 1/09 (Creation of a unified patent litigation system—European and Community Patents Court—Compatibility of the draft agreement with the Treaties), 8 March 2011, para. 60 et seq.

  74. 74.

    Cf.: BverfGE, 2 BvE 2/08 Gauweiler v Treaty of Lisbon, Judgment of 30 June 2009, where the German Federal Constitutional Court recalled quite strongly that constitutional sovereignty remains with the Member States and not with the EU. It seemed quite allergic to accept that EU legal order is becoming constitutionally sovereign. If this approach will be followed, the primus position of CJEU towards national tribunals proposed here may seriously become an illusion.

  75. 75.

    Greer and Williams (2009), p. 465.

  76. 76.

    Eeckhout (2004), p. 191/2.

  77. 77.

    Barents (2009), p. 441.

  78. 78.

    Cf.: Licková (2008), p. 463/4, who argues that the EU ‘escapes the traditional categories of constitutional and international law.’ One need to compare this to the accession procedure and its effects on the EU law.

  79. 79.

    See: Study Of Technical And Legal Issues Of A Possible EC/EU Accession To The European Convention On Human Rights, Report adopted by the Steering Committee for Human Rights (CDDH) at its 53rd meeting (25–28 June 2002). DG-II(2002)006. [CDDH(2002)010 Addendum 2].

  80. 80.

    See also: Lock (2012), p. 162.

  81. 81.

    Doc. CDDH(2002)010 Addendum 2, see note 79; See also: Gragl (2013), p. 92.

  82. 82.

    Gragl (2013), p. 92.

  83. 83.

    Gragl (2013), p. 93.

  84. 84.

    This second option, according to Gragl, would better enable the agreement to be negotiated more flexibly to allow a more genuine accommodation of EU-law peculiarities in it. See: Gragl (2013), p. 111.

  85. 85.

    Landau (2008), p. 572; See also: Joris and Vandenberghe (2008–2009), p. 36; van Dooren (2009), p. 50; Odermatt (2014a), p. 6.

  86. 86.

    Court of Justice of EU, Opinion 2/91 [1993] ECR I-1061, paras. 4, 5 and 37.

  87. 87.

    Statute of the Council of Europe, London, 5.5.1949. Available at: http://conventions.coe.int/Treaty/en/Treaties/Html/001.htm.

  88. 88.

    Although it is generally argued that the EU accession to the ECHR will itself improve the communication and cooperation between the EU and the Council of Europe as a whole. See e.g.: van Dooren (2009), p. 51/2.

  89. 89.

    Gragl (2013), p. 80.

  90. 90.

    On the obligations of the EU Member States to preserve the autonomy of the EU Court when they sign treaties outside the EU, see: Peers (2013), p. 69, compare this to the preservation of EU Court autonomy by the DAA mechanisms and safeguards.

  91. 91.

    On the EU legal order, see: Barents (2009), p. 426; See also: Lavranos (2006a), p. 464; On the question whether there is an EU legal order, or instead, an EU international legal order, see: Smith (2007), p. 444.

  92. 92.

    Cf.: Balfour (2007), p. 186, who sees accession as being made to eliminate the problems of human rights and not capturing the huge adaptation which this process will produce on ECHR.

  93. 93.

    Odermatt (2014a), p. 7.

  94. 94.

    Decision No. CM/882/2605201, Adopted by the Ministers’ Deputies at their 1085th meeting (26 May 2010). See also: Steering Committee For Human Rights (CDDH), Ad hoc terms of reference concerning accession of the EU to the Convention given to the CDDH by the Ministers’ Deputies during their 1085th meeting (26 May 2010). Strasbourg, 3 June 2010 CDDH(2010)008. Available at: http://www.coe.int/t/dghl/standardsetting/hrpolicy/accession/Working_documents/ToR_CDDH-UE_en.pdf; See also: Martín and De Nanclares (2013), p. 4; Craig (2013), p. 1117; Odermatt (2014a), p. 6.

  95. 95.

    Press Release, ‘European Commission and Council of Europe kick off joint talks on EU’s accession to the Convention on Human Rights’. European Commission, Strasbourg, 7 July 2010. IP/10/906; See also: White (2010), p. 437/8; Callewaert (2014), p. 48.

  96. 96.

    de Vries (2013), p. 79.

  97. 97.

    Report to the Committee of Ministers on the elaboration of legal instruments for the accession of the European Union to the European Convention on Human Rights. Steering Committee for Human Rights (CDDH), (CM/Del/Dec(2011)1126/4.1, CM(2011)149). Committee of Ministers of Council of Europe, 1145th meeting—13 June 2012. Available at: http://www.coe.int/t/dghl/standardsetting/hrpolicy/Accession/Accession_documents/2012_CM_Decision_accession_en.pdf.

  98. 98.

    Callewaert (2014), p. 49.

  99. 99.

    Lock (2012), p. 162 [emphasis added].

  100. 100.

    Cf.: Council of Bars and Law Societies of Europe (CCBE) Statement on the European Union accession to the European Convention on Human Rights, July 2013, p. 1, which welcomes the final draft agreement.

  101. 101.

    Callewaert (2014), p. 7.

  102. 102.

    O’Meara (2011), p. 1817/8; Contra.:Jones (2012), p. 8, who complains that the negotiating mandate for the Commission has been obsessively kept closed for the public.

  103. 103.

    Regarding the Court’s outcome of opinion, it is worth reading a core component of Opinion 1/75, at: Court of Justice of EU, Opinion 1/75, [1975] ECR 1355, p. 1360/1 (‘[…]a possible decision of the Court to the effect that such an agreement is, either by reason of its content or of the procedure adopted for its conclusion, incompatible with the provisions of the Treaty could not fail to provoke, not only in a Community context but also in that of international relations, serious difficulties and might give rise to adverse consequences for all interested parties, including third countries.’).

  104. 104.

    Eckes (2013), p. 264; Raba (2013), p. 571.

  105. 105.

    On when an opinion may be asked from the Court, see also: Court of Justice of EU, Opinion 2/94 para. 16; See also: Court of Justice of EU, Opinion 1/78 International Agreement on Natural Rubber [1979] ECR 2871, para 35; See also: Analysis (1997), p. 237.

  106. 106.

    Court of Justice of EU, Opinion 1/94,[1994] ECR I-5267, para 12 [emphasis added].

  107. 107.

    Lavranos (2008), p. 606.

  108. 108.

    On this terminology, see: Olsen (2009–2010), pp. 58 et seq.

  109. 109.

    Cf.: Lock (2012), p. 164, who argues that the rules in the DAA were purposely drafted very generally and with an open-ended language.

  110. 110.

    On the latter, see: Raba (2013), p. 563.

  111. 111.

    E.g. for such possible conflicts that are supposed to exist between the EU law and ECHR, one can take the example of the compliance of Dublin II Regulation with ECHR, the latter certainly providing higher standards compared to that EU act. Lenart (2012), pp. 9 et seq.

  112. 112.

    Explanatory Report to the DAA, para. 15.

  113. 113.

    In the final and Fifth Negotiation Meeting Between the CDDH Ad Hoc Negotiation Group and the European Commission for the EU accession to ECHR, on Strasbourg 3–5 April 2013, CoE Doc. 47+1(2013)008rev2.

  114. 114.

    CoE Doc. 47+1(2013)008rev2, para. 9.

  115. 115.

    Joris and Vandenberghe (2008–2009), p. 36; See also: Ribble (2010–2011), p. 225; Martín and De Nanclares (2013), p. 5.

  116. 116.

    On M.S.S., see e.g.: Nanopoulos (2013), pp. 277/8 et seq.

  117. 117.

    Editorial (2013), p. 473.

  118. 118.

    Quirico (2010), p. 33; See also: Lenaerts and de Smijter (2001), p. 100; Odermatt (2014a), pp. 12–13; White (2010), p. 435; Tulkens (2013), p. 16.

  119. 119.

    Which have had times of dialogue but also of competition, at: Peers (2006), p. 443; On the enhancement of human rights protection after accession, see also: Groussot et al. (2011), p. 17; See also another relevant interesting claim on this topic, at: Miiller (2007), p. 34 (‘…as long as an “International Court of Human Rights” is not in place and as long as the EU is not a member of the ECHR, great uncertainty and a lack of judicial remedy could remain.’).

  120. 120.

    Callewaert (2014), pp. 9–10.

  121. 121.

    White (2010), p. 433.

  122. 122.

    On this, see e.g.: García (2002)), p. 501; On the submission of the Luxembourg to the Strasbourg Court, see e.g.: Odermatt (2014a), p. 5; See also a general note on this, at: Tulkens (2013), p. 9.

  123. 123.

    See a similar argument, at: Callewaert (2014), p. 19.

  124. 124.

    E.g. and Cf.: Muir (2014), p. 219, arguing that accession will increase human right protection in the EU; See also: Groussot et al. (2011), p. 1.

  125. 125.

    Ryngaert (2011), p. 1016.

  126. 126.

    O’Cinneide (2009), p. 1.

  127. 127.

    On a general examination of this issue, see also: Pauwelyn (2003), pp. 99 et seq; In addition, for instance, the Luxembourg Court has ruled in The Queen ex parte Centro-Com that the Community law may not prevent the EU Member States from implementing UN law. See: Court of Justice of EU, The Queen ex parte Centro-Com v. HM Treasury, Case C-124/95 [1997] ECR I-81, para. 61.

  128. 128.

    One may recall that the Court of First Instance had accepted in Yusuf the primacy of international law in face of EU law, asking EU to disapply EU law if it contradicts to international law. However, that approach was later changed by the European Court of Justice acting as a second/appeal instance in that case. See: Court of First Instance, Yusuf v. Council and Commission, Case T-306/01 [2005] ECR II-3353, paras. 234–240.

  129. 129.

    Thym (2013a), p. 3.

  130. 130.

    See: Muir (2014), p. 243, arguing that the EU Court maintained that the EU has no competence to accede, which must be understood as that competence remains to the Member States, the latter having the competence to decide otherwise; See also: Analysis (1997), pp. 235 et seq; Quirico (2010), p. 31/2.

  131. 131.

    Inter-American Court of Human Rights, Hilaire v. Trinidad and Tobago, Preliminary Objections, judgment of 1 September 2001, Series C, No. 80, para. 86.

  132. 132.

    Von Bogdandy (2012), p. 517; Lenaerts and de Smijter (2001), p. 100; Craig (2013), p. 1142; On the request for an equal footing position of EU with other Convention Member States, see: European Parliament resolution of 19 May 2010 on the institutional aspects of the accession of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms (2009/2241(INI)), p. 1; Compare the latter to the Luxembourg’s Opinion 2/13, which basically requests the contrary; Cf.: Tulkens (2013), p. 10 (‘Absolute equality between the EU and the other Contracting States is therefore neither possible nor even desirable.’); Cf.: de Rivery and Chassaing (2013), p. 4 (In a post-accession perspective, ‘[t]he CJEU ought therefore to no longer be able to hide behind the Bosphorus veil, because in accordance with ECHR provisions, it will just become one among the many supreme courts of the Contracting Parties.’).

  133. 133.

    de Rivery and Chassaing (2013), p. 1.

  134. 134.

    The Council had proposed two decades ago that the then EC should have acceded to all protocols in which all Convention contracting parties had also acceded. See: Analysis (1997), p. 238/9.

  135. 135.

    Jacque (2011), p. 1002.

  136. 136.

    The European Parliament had proposed that the EU join only those protocols which include the Charter of Fundamental Rights’ rights. See: Quirico (2010), p. 36.

  137. 137.

    Jacque (2011), p. 1004; See also: Craig (2013), p. 1118.

  138. 138.

    Gragl (2013), p. 94.

  139. 139.

    On the existing protocols and their material nature, see: Shelton (2003), pp. 100 et seq.

  140. 140.

    Raba (2013), p. 563; See also: Gragl (2013), p. 94.

  141. 141.

    E.g.: Groussot et al. (2011), p. 4.

  142. 142.

    Jacque (2011), p. 1003; The latter, however, argues that such resistance of Member States would seem impracticable as all Member States are already submitted to the Charter of Fundamental Rights, which is effectively far broader than all Convention protocols; See also on this resistance: Odermatt (2014a), p. 30.

  143. 143.

    Gragl (2013), p. 94.

  144. 144.

    See also: Jacque (2011), p. 1004/5; See also: Gragl (2013), p. 95.

  145. 145.

    In examining the claimant’s reliance upon an ECHR Protocol to which not all EU Member States had acceded, AG Cruz Villalón had argued that ‘the fact is that not all the Member States have ratified that provision, while others have adopted reservations or interpretative declarations in relation to it. The effect of that situation is that the requirement to interpret the Charter in the light of the ECHR and the case-law of the European Court of Human Rights (Article 52(3) of the Charter) becomes, so to speak, asymmetrical, leading to significant problems when it is applied to this case.’ See: Opinion of AG Cruz Villalón delivered on 12 June 2012, on Case C-617/10, Åklagaren v Hans Åkerberg Fransson, para. 70. Although AG Cruz Villalón and the Luxembourg Court in Fransson did not explicitly suggest how to tackle these protocols, their basic argument was that as long as EU has not acceded to the ECHR and those protocols, the EU Court may not tackle that issue as, if it does, that would mean as it is regulating the relationship between the Convention and its Member States. The Court and AG Cruz Villalón seem to suggest that such issue should remain outside the answer of the EU Court, which practically means that such protocols have no value in EU legal order.

  146. 146.

    Gragl (2013), p. 94.

  147. 147.

    Gragl (2013), p. 95.

  148. 148.

    See also: Quirico (2010), p. 40.

  149. 149.

    On the latter part of the argument, see: Odermatt (2014a), p. 33.

  150. 150.

    Analysis (1997), p. 238.

  151. 151.

    I use a synonymous argument here inspired by the general note of: Ribble (2010–2011), p. 226; Cf.: Gragl (2013), p. 130, who, by referring to an ICJ judgment, comes to the conclusion that a reservation, e.g. to exclude the EU primary law from the Strasbourg’s jurisdiction would go contrary to VCLT’s Art. 19b (in view also of the terms of Art. 2 (2) of the DAA).

  152. 152.

    It should be noted that although the EU has rather clearly established competences, there are usual tendencies to recognize the limitations to those competences, which can sometime arrive in a position wherein the EU takes over to guarantee rights which may be of the nature that go beyond what can the EU possess in terms of its competences. See on this e.g.: Lööf (2006), p. 426.

  153. 153.

    It is noted that both the co-respondent mechanism and the prior involvement procedure have been influenced by the joint statement of the two presidents of European courts. See on this: O’Meara (2011), p. 1814.

  154. 154.

    On the external autonomy, Cf.: Besson (2009), p. 240; On the question of whether there is an ongoing extention of international tribunals’ jurisdiction on matters that were previously state-owned, see: Lavranos (2008).

  155. 155.

    European Commission on Human Rights, Austria v. Italy (the ‘Pfunders’ Case), Application No. 788/60, Decision as to Admissibility (11th January 1961), p. 19.

  156. 156.

    Inter-American Court of Human Rights, (‘The Effect of Reservations on the Entry into Force of the American Convention on Human Rights (Arts. 74 and 75)’), Advisory Opinion OC -2/82 of 24 September 1982, Inter-American Court of Human Rights (Ser. A, no. 2) (1982), para. 29.

  157. 157.

    On the latter, see: Raba (2013), p. 563.

  158. 158.

    On the need for equal-footing position of EU and Member States, see also: Conforti (2010), p. 83.

  159. 159.

    Joris and Vandenberghe (2008–2009), p. 41 (Participation in these Convention/Council of Europe structures ‘[…] could result in a better division of tasks and activities, and would allow the EU to speak for itself in Council of Europe bodies on all issues which affect its interests and which fall within its competence.’); See also: Raba (2013), p. 559.

  160. 160.

    Wetzel (2003), p. 2849; Cf.: Odermatt (2014a), p. 20 (In this case one is ‘faced with the issue of how to reconcile the fact that one the one hand, the EU is a separate legal entity that should prima facie have the right to vote, and the fact that the EU is constituted by other Member States who will retain their right to vote.’).

  161. 161.

    Art. 9 (1) of the Marrakesh Agreement Establishing the World Trade Organization reads: ‘Where the European Communities exercise their right to vote, they shall have a number of votes equal to the number of their member States which are Members of the WTO.’; Accord: A similar example is the Statute of the International Renewable Energy Agency, which states: ‘In the case of any regional intergovernmental economic integration organisation, the organisation and its Member States shall decide on their respective responsibilities for the performance of their obligations under this Statute. The organisation and its Member States shall not be entitled to exercise rights, including voting rights, under the Statute concurrently.’ Council Decision of 24 June 2010 on the conclusion of the Statute of the International Renewable Energy Agency (IRENA) by the European Union (2010/385/EU), Art. 6 (C) [emphasis added].

  162. 162.

    Cf.: Odermatt (2014a), p. 21, who argues that one reason for allowing the dual representation with DAA is because it would not be possible and feasible to define the division of competences between the EU and Member States regarding the Convention.

  163. 163.

    On the duty of sincere cooperation in international practice from the perspective of Opinion 1/94, see: Editorial Comments (1995), pp. 385 et seq; See also in this regard an interesting case, at: Court of Justice of EU, The Queen, ex parte Centro-Com Srl v HM Treasury and Bank of England, Case C–124/95 [1997] ECR I-81, para. 27.

  164. 164.

    Eckes (2013), p. 273.

  165. 165.

    Court of Justice of EU, Commission v Council, Case C-25/94 [1996] ECR I-1469.

  166. 166.

    Lock (2010), p. 777; See also: Groussot et al. (2011), p. 3; Conforti (2010), p. 86; Ribble (2010–2011), p. 224 (‘[…]having an EU judge participate in ECHR cases concerning the EU may help alleviate stress between different interpretations of the Convention as it relates to EU law.’); Cf.: Odermatt (2014a), p. 18 (‘The concept of having a judge in respect of the EU is somewhat novel, and does not appear in other Conventions where the EU is a party.’).

  167. 167.

    On the latter, more broadly, see also: Odermatt (2014a), p. 18.

  168. 168.

    See also: Odermatt (2014a), p. 19.

  169. 169.

    See also e.g.: Jacque (2011), p. 1009; O’Meara (2011), p. 1827; Martín and De Nanclares (2013), p. 7/8.

  170. 170.

    Odermatt (2014a), p. 8.

  171. 171.

    Hart (2010), p. 551; Martín and De Nanclares (2013), p. 7/8; Jones (2012), p. 4; On the EU institutional participation in other international organizations and treaty bodies, see e.g.: Hoffmeister (2007), pp. 41 et seq; See also: Groussot et al. (2011), p. 8; and, Conforti (2010), p. 86.

  172. 172.

    As a core statutory body of the Council of Europe, see e.g.: Joris and Vandenberghe (2008–2009), p. 5; See also: Raba (2013), p. 569.

  173. 173.

    Some international organizations prohibit parallel voting. One example is FAO, which in its Rule II (5) reads: ‘Before any meeting of the Commission […] in which a Member Organization is entitled to participate, the Member Organization or its Member States shall indicate in writing which, as between the Member Organization and its Member States, has competence in respect of any specific question to be considered in the meeting and which, as between the Member Organization and its Member States, shall exercise the right to vote in respect of each particular agenda item.’ (FAO Rules of Procedure, available at: http://www.fao.org/docrep/006/y4800e/y4800e0m.htm); Prohibiting parallel voting may have probably been a better model of excluding coordinated voting between the EU and its Member States in the Committee of Ministers of the Council of Europe.

  174. 174.

    Lock (2010), p. 777; See also: Quirico (2010), p. 52; Jacque (2011), p. 1010, arguing that EU should make a declaration to the DAA undertaking not to coordinate decisions with its Member States within the Committee of Ministers if the issue involves a non-EU Member State. It also makes the argument that with EU part of the Committee, EU and Member States may practically dominate the Committee’s work; Cf.: Tulkens (2013), p. 15, who argues that, nevertheless, the EU’s position within the Committee of Ministers would at least be important for the ‘symbolic power games between the EU and its Member States on the one hand and the non Member States, on the other.’

  175. 175.

    Martín and De Nanclares (2013), p. 8.

  176. 176.

    One example of ‘coordinated position’ between the EU and its Member States as regards the participation in the decision-making body of an international treaty may be found at: ‘Internal Agreement between Representatives of the Governments of the Member States, meeting within the Council, on the Financing and Administration of Community Aid under the Financial Protocol to the Partnership Agreement between the African, Caribbean and Pacific States and the European Community and its Member States signed in Cotonou on 23 June 2000 and the allocation of financial assistance for the Overseas Countries and Territories to which Part Four of the EC Treaty applies (2000/770/EC)’. OJ L 317, 15.12.2000, pp. 355–357; See in this regard a decision of Luxembourg Court as regards voting rights between EU and its Member States in FAO, at: Court of Justice of EU, Commission v Council (FAO), Case C-25/94 [1996] ECR I-1469.

  177. 177.

    Martín and De Nanclares (2013), p. 8; Cf.: Odermatt (2014a), pp. 8 and 20, arguing that it is normal for non-EU Member States to consider EU’s dual representation at international organizations as a risky practice, as the EU may encourage block voting with its Member States.

  178. 178.

    Cf.: Kuiper (1995), p. 243/44, who suggests that it is desirable to adopt a code of conduct to regulate the coordination between the EU and its Member States when they participate in WTO mechanisms—as to comply with the duty of sincere cooperation. Although the desirability of such mechanisms may seem legitimate for technical reasons, it would however seriously undermine the external independence of EU Member States when they participate in international organizations along the EU.

  179. 179.

    Cf.: See also in this regard the EU’s participation in Korean Peninsular Energy Development Organisation Executive Board, at: Council Common Position 2001/869/CFSP [2001] OJ L 325/1, article 1.

  180. 180.

    Court of Justice of EU, Opinion 2/91, [1993] ECR I-1061, para. 36.

  181. 181.

    Court of Justice of EU, Opinion 2/91, [1993] ECR I-1061, paras. 36–38.

  182. 182.

    Art. 8 (1) DAA; A general note on the flat-rate participation on expenditures rule that EU should adhere to, see: Jacque (2011), p. 1010; See also: Martín and De Nanclares (2013), p. 13 (‘The contribution of approximately 9.34m euros to the Council of Europe’s shaky finances could go a long way to overcoming the reluctance which is still shown in the negotiations by some States which are parties to the ECHR but not members of the EU.’); Odermatt (2014a), p. 21.

  183. 183.

    European Agreement relating to Persons Participating in Proceedings of the European Court of Human Rights of 5 March 1996 (ETS No. 161).

  184. 184.

    General Agreement on Privileges and Immunities of the Council of Europe of 2 September 1949 (ETS No. 2).

  185. 185.

    Protocol 6 to the General Agreement on Privileges and Immunities of the Council of Europe of 5 March 1996 (ETS No. 162).

  186. 186.

    Art. 9 (2) DAT.

  187. 187.

    On the latter argument, see also: Odermatt (2014a), p. 23.

  188. 188.

    International Court of Justice, North Sea Continental Shelf (Federal Republic Of Germany/Denmark; Federal Republic Of Germany/Netherlands), Judgment, ICJ Reports 1969, 20 February 1969, para. 27.

  189. 189.

    Accord.: Art. 11 (2), Art. 14 & Art. 15 VCLTSIOIO.

  190. 190.

    E.g.: Quirico (2010), p. 32.

  191. 191.

    On the latter, see e.g.: Martín and De Nanclares (2013), p. 7.

  192. 192.

    Cf.: Art. 19 VCLTSIOIO.

  193. 193.

    On this, see also: Martín and De Nanclares (2013), p. 7.

  194. 194.

    Accord, also: Inter-American Court of Human Rights, (on the effect of reservations on the entry into force of the American Convention on Human Rights) Advisory Opinion OC -2/82 of 24 September 1982 (Arts. 74 and 75), Series A, No. 2, para. 34 (‘A treaty which attaches such great importance to the protection of the individual that it makes the right of individual petition mandatory as of the moment of ratification, can hardly be deemed to have intended to delay the treaty’s entry into force until at least one other State is prepared to accept the reserving State as a party.’); Cf.: International Law Commission, (‘The unity or diversity of the juridical regime for reservations’), Preliminary Conclusions of 1997, para. 1 (‘the object and purpose of the treaty is the most important of the criteria for determining the admissibility of reservations’).

  195. 195.

    The European Convention, The Secretariat, Brussels, 22 October 2002, CONV 354/02 WG II 16 Report, Chairman of Working group II “Incorporation of the Charter/accession to the ECHR”, Final report of Working Group II, p. 15.

  196. 196.

    VCLTSIOIO.

  197. 197.

    Odermatt (2014a), p. 31.

  198. 198.

    Lixinski (2014), p. 232.

  199. 199.

    Harmsen (2014), p. 216.

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    Fisnik Korenica

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Korenica, F. (2015). A New Start for the Accession of the EU to the ECHR. In: The EU Accession to the ECHR. Springer, Cham. https://doi.org/10.1007/978-3-319-21759-8_4

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