Opinion 2/13

Opinion pursuant to Article 218(11) TFEU

‛Opinion pursuant to Article 218(11) TFEU — Draft international agreement — 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’

Summary — Opinion of the Court (Full Court), 18 December 2014

International agreements — Agreement on accession to the European Convention on Human Rights — No provisions ensuring coordination between Article 53 of the European Convention on Human Rights and Article 53 of the Charter of Fundamental Rights of the European Union — European Union and Member States considered Contracting Parties in their relations with each other — Requirements of the principle of mutual trust disregarded — No provision made in respect of the relationship between the advisory opinion mechanism in Protocol No 16 to the European Convention on Human Rights and the preliminary ruling procedure — Agreement liable adversely to affect the specific characteristics and autonomy of EU law

The review which the Court of Justice is called upon to carry out in the context of the Opinion procedure is closely circumscribed by the Treaties; therefore, if it is not to encroach on the competences of the other institutions responsible for drawing up the internal rules necessary in order to make an accession agreement operational, the Court must confine itself to examining the compatibility of that agreement with the Treaties and satisfy itself not only that it does not infringe any provision of primary law but also that it contains every provision that primary law may require. It follows from this that the assessments relating to those internal rules are irrelevant to the examination of a request for an Opinion and do not therefore call into question the admissibility of that request. (see paras 150, 151)

The fact that the European Union has a new kind of legal order, the nature of which is peculiar to the European Union, its own constitutional framework and founding principles, a particularly sophisticated institutional structure and a full set of legal rules to ensure its operation, has consequences as regards the procedure for and conditions of accession of the European Union to the European Convention on Human Rights (ECHR). It is precisely in order to ensure that that situation is taken into account that the Treaties, notably Article 6(2) TEU, Protocol No 8 relating to Article 6(2) TEU on the accession of the Union to the ECHR, and the Declaration on Article 6(2) TEU, make accession subject to compliance with various conditions. In performing the task conferred on it by the first subparagraph of Article 19(1) TEU, the Court of Justice must review, in the light, in particular, of those provisions, whether the legal arrangements proposed in respect of the European Union’s accession to the ECHR are in conformity with the requirements laid down and, more generally, with the basic constitutional charter, the Treaties. For the purposes of that review, it must be noted that the conditions to which accession is subject under the Treaties are intended, particularly, to ensure that accession does not affect the specific characteristics of the European Union and EU law. (see paras 158-164)

The accession of the European Union to the European Convention on Human Rights (ECHR) as envisaged by the draft agreement is liable adversely to affect the specific characteristics of EU law and its autonomy. In the first place, in so far as Article 53 of the ECHR essentially reserves the power of the High Contracting Parties to lay down higher standards of protection of fundamental rights than those guaranteed by the ECHR, that provision should be coordinated with Article 53 of the Charter of Fundamental Rights of the European Union, as interpreted by the Court of Justice, so that the power granted to Member States by Article 53 of the ECHR is limited — with respect to the rights recognised by the Charter that correspond to those guaranteed by the ECHR — to that which is necessary to ensure that the level of protection provided for by the Charter and the primacy, unity and effectiveness of EU law are not compromised. However, there is no provision in the agreement envisaged to ensure such coordination. In the second place, the approach adopted in the agreement envisaged, which is to treat the European Union as a State and to give it a role identical in every respect to that of any other Contracting Party, disregards the intrinsic nature of the European Union. In so far as the ECHR would, in requiring the European Union and the Member States to be considered Contracting Parties not only in their relations with Contracting Parties which are not Member States of the European Union 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 European Union and undermine the autonomy of EU law. In the third place, by failing to make any provision in respect of the relationship between the mechanism established by Protocol No 16 to the ECHR (which permits the highest courts and tribunals of the Member States to request the European Court of Human Rights to give advisory opinions on questions of principle relating to the interpretation or application of the rights and freedoms guaranteed by the ECHR or the protocols thereto) and the preliminary ruling procedure provided for in Article 267 TFEU, the agreement envisaged is liable adversely to affect the autonomy and effectiveness of the latter procedure. 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 is the keystone of the judicial system established by the Treaties. (see paras 189, 190, 193, 194, 196, 198-200)

The envisaged agreement on the accession of the European Union to the European Convention on Human Rights (ECHR) is liable to affect Article 344 TFEU. The procedure for the resolution of disputes provided for in Article 33 of the ECHR could apply to any High Contracting Party and, therefore, also to disputes between the Member States, or between those Member States and the European Union, even though it is EU law that is in issue. The fact that Article 5 of the draft agreement provides that proceedings before the Court of Justice are not to be regarded as a means of dispute settlement which the Contracting Parties have agreed to forgo in accordance with Article 55 of the ECHR is not sufficient to preserve the exclusive jurisdiction of the Court of Justice, given that Article 5 of the draft agreement merely reduces the scope of the obligation laid down by Article 55 of the ECHR, but still allows for the possibility that the European Union or Member States might submit an application to the European Court of Human Rights (ECtHR), under Article 33 of the ECHR, concerning an alleged violation thereof by a Member State or the European Union, respectively, in conjunction with EU law. Thus, the fact that Member States or the European Union are able to submit an application to the ECtHR is liable in itself to undermine the objective of Article 344 TFEU and, moreover, goes against the very nature of EU law, which requires that relations between the Member States be governed by EU law to the exclusion, if EU law so requires, of any other law. In those circumstances, only the express exclusion of the ECtHR’s jurisdiction under Article 33 of the ECHR over disputes between Member States or between Member States and the European Union in relation to the application of the ECHR within the scope ratione materiae of EU law would be compatible with Article 344 TFEU. (see paras 205-207, 212-214)

The arrangements for the operation of the co-respondent mechanism laid down by the envisaged agreement on the accession of the European Union to the European Convention on Human Rights (ECHR) do not ensure that the specific characteristics of the European Union and EU law are preserved. First, the draft agreement provides that if the European Union or Member States request leave to intervene as co-respondents in a case before the European Court of Human Rights (ECtHR), they must give reasons from which it can be established that the conditions for their participation in the procedure are met, and the ECtHR is to decide on that request in the light of the plausibility of those reasons. In carrying out that review, the ECtHR would be required to assess the rules of EU law governing the division of powers between the European Union 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 European Union. Such a review would be liable to interfere with the division of powers between the European Union and its Member States. Secondly, the draft agreement provides that if the violation in respect of which a High Contracting Party is a co-respondent to the proceedings is established, the respondent and the co-respondent are to be jointly responsible for that violation. That provision does not preclude a Member State from being held responsible, together with the European Union, for the violation of a provision of the ECHR in respect of which that Member State may have made a reservation in accordance with Article 57 of the ECHR. Such a consequence is at odds with Article 2 of Protocol No 8 relating to Article 6(2) TEU on the accession of the Union to the ECHR, according to which the accession agreement is to ensure that nothing therein affects the situation of Member States in relation to the ECHR, in particular in relation to reservations thereto. Thirdly, the draft agreement provides for an exception to the general rule that the respondent and co-respondent are to be jointly responsible for a violation established, by virtue of which the ECtHR may decide that only one of them is to be held responsible for that violation. A decision on the apportionment as between the European Union and its Member States of responsibility for an act or omission constituting a violation of the ECHR established by the ECtHR is also one that is based on an assessment of the rules of EU law governing the division of powers between the European Union and its Member States and the attributability of that act or omission. Accordingly, to permit the ECtHR to adopt such a decision would also risk adversely affecting the division of powers between the European Union and its Member States. (see paras 223-231, 235)

The arrangements for the operation of the procedure for the prior involvement of the Court of Justice provided for by the envisaged agreement on the accession of the European Union to the European Convention on Human Rights (ECHR) do not enable the specific characteristics of the European Union and EU law to be preserved. In the first place, it is necessary for the question whether the Court of Justice has already given a ruling on the same question of law as that at issue in the proceedings before the European Court of Human Rights (ECtHR) to be resolved only by the competent EU institution, whose decision should bind the ECtHR. To permit the ECtHR to rule on such a question would be tantamount to conferring on it jurisdiction to interpret the case-law of the Court of Justice. Yet the draft agreement does not contain anything to suggest that that possibility is excluded. In the second place, 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. If the Court of Justice were not allowed 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. Accordingly, limiting the scope of the prior involvement procedure, in the case of secondary law, solely to questions of validity adversely affects the competences of the European Union and the powers of the Court of Justice in that it does not allow the Court to provide a definitive interpretation of secondary law in the light of the rights guaranteed by the ECHR. (see paras 238-240, 243, 246-248)

The envisaged agreement on the accession of the European Union to the European Convention on Human Rights (ECHR) fails to have regard to the specific characteristics of EU law with regard to the judicial review of acts, actions or omissions on the part of the European Union in common foreign and security policy (CFSP) matters. As EU law now stands, certain acts adopted in the context of the CFSP fall outside the ambit of judicial review by the Court of Justice. That situation is inherent to the way in which the Court’s powers are structured by the Treaties, and, as such, can only be explained by reference to EU law alone. Nevertheless, on the basis of accession as provided for by the agreement envisaged, the European Court of Human Rights (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. Such a situation would effectively entrust the judicial review of those acts, actions or omissions on the part of the European Union exclusively to a non-EU body, albeit that any such review would be limited to compliance with the rights guaranteed by the ECHR. Jurisdiction to carry out a judicial review of acts, actions or omissions on the part of the European Union, 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 European Union. (see paras 252-257)