The Court of Justice of the European Union has given a negative Opinion on the agreement that regulated the accession of the EU to the European Convention on Human Rights (ECHR). While this probably means that accession will not take place in the years to come, it is worth analysing some of the arguments of the Court, which disclose its views on the role of the ECHR and fundamental rights within EU law.

Introduction

The accession of the European Union (EU) to the European Convention on Human Rights (ECHR or “the Convention”) had been the subject of discussion and speculation since the 70s. In its Opinion 2/94, the European Court of Justice made it clear in 1996 that a legal basis was required in the Union’s primary law. With the entry into force of the Lisbon Treaty, this legal basis was created in Article 6(2) of the Treaty on European Union (TEU). Long negotiations started in 2010 between the European Union and the Member States of the Council of Europe to agree on the necessary modifications to the ECHR. The main challenge was to adapt the ECHR to a special circumstance that the EU would be the only non-State Contracting Party. A draft agreement was finally concluded in April 2013 and submitted to the Court of Justice of the European Union (CJEU) for an Opinion on its compatibility with the Treaties in accordance with Article 218(11) of the Treaty on the Functioning of the European Union (TFEU). This much-awaited Opinion was finally released last December and is the object of this article, which deals with some of the fundamental questions at the core of the CJEU’s objections to the agreement.

The CJEU’s fundamental objections and fundamental rights in Europe

The most substantial part of the Court’s reasoning is in paragraphs 155-200 of the Opinion. There the Court makes some preliminary considerations concerning the nature of European Union law and how it influences its relations with the ECHR (paragraphs 155-177). The Court focuses subsequently on the autonomy of EU law to conclude that the agreement does not safeguard it (paragraphs 178-200).

The Court makes a summary of the most fundamental features of EU law, including autonomy, direct effect and primacy with respect to national law, or the principles of conferral of powers and loyal cooperation (Articles 4 and 5 TEU) and mutual trust between Member States. When it comes to the role of fundamental rights within the Union’s legal order, the Court emphasises the central role of the Charter of Fundamental Rights of the EU (CFREU or “the Charter”), which enjoys the same legal value as the Treaties. The Court affirms that the autonomy of EU law requires its set of fundamental rights to be interpreted and applied in accordance with the EU´s constitutional frame (paragraphs 170 and 177). This idea is reflected in Article 52(1) of the Charter which states that “Subject to the principle of proportionality, limitations [of the rights recognised in the Charter] may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union (…)”.

With regard to accepting an external, supervisory mechanism in the field of fundamental rights, such as as the European Court of Human Rights (ECtHR), the CJEU states that decisions of external mechanisms should not be able to bind the EU and its institutions to a particular interpretation of the rules of EU law in the exercise of their internal powers. This applies to fundamental rights as recognised in the CFREU: “(…) it should not be possible for the ECtHR to call into question the Court’s 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). This is a major objection, arguably not to the concrete agreement, but to the idea of accession and submission of the CJEU’s decision to judicial review by the ECtHR. The CJEU seems to prefer to remain free in the interpretation of the Charter, and does not wish to be bound by decisions of the ECtHR concerning, in particular, the scope of the CFREU ratione materiae (regulated in Article 51(1) CFREU) in order to preserve the autonomy of EU law. The CJEU warns against the possibility that the interpretation of the ECHR by the ECtHR, applied to Member States, “upset[s] the balance of the EU” (para. 194). There are, hence, strong autonomy concerns on the part of the CJEU in this respect.

These autonomy concerns, however, become hardly understandable in the light of two legal facts. First, as the CJEU points out, accession means that the ECHR becomes “integral part of EU law” (para. 197). This was the wish of the Member States as agreed in Article 6(2) TEU and in Article 216(2) TFEU, which states that international agreements to which the EU becomes a party are binding on it, on its institutions and its Member States. Secondly, Article 52(3) CFREU (also negotiated and consented to by the EU Member States) regulates relations between the CFREU and the ECHR in the sense that the meaning and scope of the CFREU rights shall be the same as those of the corresponding ECHR rights, where there is such a match. The Union is free to provide more extensive protection. A significant part of the CFREU rights corresponds to the rights enshrined in the ECHR, and the Member States of the EU, when drafting the Charter, agreed that their meaning and scope should be the same, i.e. that the interpretation by the ECtHR of those corresponding rights would be the binding interpretation of those same rights in their “Charter version”.

It is very surprising that in the Opinion the CJEU does not mention Article 52(3). However, in view of the two legal facts mentioned, one can argue that Member States have consented to a certain loss of autonomy of EU law as far as fundamental rights are concerned to ensure the coherence of fundamental rights in Europe stated in the preamble of the accession agreement. The ECHR becomes part of the EU legal system as binding law and its substance is determinative of part of the substance of an act of EU primary law, the Charter. It is therefore arguable that the EU legal system is open to the influence of the ECHR, including of the authoritative interpretation by the ECtHR, and accepts it as an integral part of itself. This systematic construction of Article 6(2) TEU, Article 216(2) TFEU and Article 52(3) CFREU, which does not deviate from the will of the Member States as reflected in primary law, could have led the CJEU to the conclusion that the autonomy of EU law does allow for the influence of the ECHR on the EU legal system, with the objective of ensuring that fundamental rights are really a coherent body of law across Europe. And precisely this was the matter at stake. The CJEU does not seem, however, to have realised it and has only focused on the strict autonomy of EU law.

Accepting an external control mechanism means accepting a certain influence of an external body of law (which additionally, as said before, becomes integral part of domestic law). Not being ready to accept the binding character of its decisions in all cases constitutes an objection of principle, which can only be superseded with great difficulty by restricting the competence of the control mechanism. This, however, would turn the controlled into the controller. The CJEU seems to think in this direction when it reiterates that the CFREU rights need to be interpreted within their constitutional system. The question arises whether the CJEU then would have expected the accession agreement to ensure that the ECtHR takes full account of such system and accepts the limitations of fundamental rights justified on that basis (again, Article 52(1) CFREU) when it decides cases against the EU. This would mean, again, restricting the reviewing competence of the ECtHR. In this respect, it has to be pointed out that EU Member States also have, each of them, a constitutional system of which domestically recognised fundamental rights are an integral part. In these constitutional systems we find, however, clauses that integrate the ECHR and open national systems to its influence. For example, Article 10(2) of the Spanish Constitution states that norms relating to fundamental rights recognised in the Constitution will be interpreted according to human rights treaties ratified by Spain. The Human Rights Act of the UK compels national courts and tribunals to take into account any judgment, decision, declaration or advisory opinion of the ECtHR when determining a question connected with a Convention right (Section 2(1)) and orders a reading and application of legislation in a way which is compatible with fundamental rights as far as possible (Section 3(1)). In Germany, the Federal Constitutional Court stated in its Sicherungsverwahrung judgment that decisions of the ECtHR could be considered as relevant legal changes allowing for a fresh constitutional review of a norm that has already been tested by the Federal Constitutional Court. The EU would hence not be an exception if the configuration of its own fundamental rights could be decisively influenced by the binding interpretation of an external organ. Arguably Article 52(3) CFREU goes further than the national provisions cited, but again this was the will of the Member States. Finally, another glaring absence from the CJEU’s Opinion is the ECtHR’s doctrine of the margin of appreciation, conceived and applied precisely to ensure deference to domestic legal systems. That doctrine certainly could have assuaged the CJEU’s concerns.

Also related to the autonomy of EU law are the CJEU’s concerns with respect to the coordination of Article 53 ECHR with Article 53 CFREU. These are, in both cases, the clauses that allow a higher level of protection by States Parties/Member States. The CJEU has interpreted Article 53 CFREU in the sense that it does not allow Member States, however, to take measures that compromise the level of protection afforded by the Charter, the primacy, the unity and the effectiveness of EU law (judgment in case C-399/11, Melloni). The CJEU fears that, when Member States afford a higher level of protection on the basis of Article 53 ECHR, they could thereby jeopardise the primacy, unity and effectiveness of EU law with respect to those CFREU rights with a counterpart in the ECHR. Therefore it expects from the draft agreement that it establishes how both provisions should be coordinated to preserve the characteristics of EU law.

In relation to these concerns it has to be noted, in the first place, that the current situation, i.e. before the accession of the EU to the ECHR, already lends itself to such a potential conflict. The possibility that the EU becomes a party to the ECHR and that the case law of the Strasbourg Court becomes binding for the CJEU would not introduce any new element. EU Member States are already bound by the ECHR and by the Charter. They are already allowed to afford a level of protection higher than the ECHR and they already have the obligation to apply the Charter rights in a way which does not compromise the primacy, unity and effectiveness of EU law. The CJEU seems to be weary of a situation which already exists and which can be characterised as an EU-internal problem. States Parties to the ECHR are not controlled by the ECtHR when they afford a level of protection higher than that of the Convention. If, in doing so, they act still within the scope of CFREU rights, EU organs are the competent ones to exercise such control. The ECtHR is never going to make an interpretation of potential content of ECHR rights that goes beyond the ECHR itself. The interpretation of the ECtHR which is binding for the CJEU has its limits in Article 52(3) of the Charter: in the meaning and scope of those Charter rights which have a counterpart in the ECHR. Beyond that, the CJEU remains free to set the limits of the application and interpretation of Charter rights by the Member States and to ensure the primacy, unity and effectiveness of EU law. In addition, the coordination the CJEU proposes could partially mean a restriction on the ECtHR’s ability to interpret Article 53 ECHR. It doesn’t seem reasonable that accession of a new Party to the Convention should restrict the competences of the ECtHR.

Conclusion

The Opinion deals with many more questions; some of them are rather technical and some of them more principled. Space constraints do not allow for a lengthy discussion about all of them here. Nevertheless, the two analysed objections give already enough food for thought, as they are indicative of the CJEU’s understanding of fundamental rights in Europe and demonstrate that the CJEU seems to have some problems with the current scope of relations between ECHR and CFREU. Both aspects have been criticised in this contribution. Unfortunately, it seems unlikely that the CJEU could change its mind in the near future.

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MEET THE AUTHOR

Daniel Toda Castán studied Law and Political Science in Madrid. After a one-year internship at the Spanish Constitutional Court, he graduated from the European Master’s Degree in Human Rights and Democratisation in 2011. He then served as an intern at the Inter-American Court of Human Rights, at the Delegation of the European Union to the Council of Europe and at the European Council on Refugees and Exiles, where he later became Events & Training Officer. Currently, he works as an academic assistant at the German University for Administrative Sciences in Speyer, Germany, where he also prepares a PhD thesis on the effects of decisions of international human rights courts in domestic law. He has been involved as a volunteer in LGBTI and refugee rights organisations in Spain, France and Belgium.