When within the European Union the Lisbon Treaty was elaborated, the negotiators easily reached agreement on subjecting the EU to the constraints of the European Convention on Human Rights (ECHR). It seemed to be an anomaly that all the Member States should be subject to the review power of the Strasbourg Court of Human Rights (ECtHR) while the EU itself was exempt from that control procedure. Accordingly, Article 6(2) of the Treaty on the European Union (TEU) states in categorical terms that “the Union shall accede” to the ECHR. Coordination with the ECHR was necessary for that purpose since originally provision was made only for States as contracting parties. This obstacle was overcome in 2010 by the entry into force of Protocol No. 14 to the ECHR, which cleared the way for the EU’s participation in the Strasbourg system.
The further steps were at first deemed to be just a matter of juridical routine. A draft agreement was adopted in 2013 that seemed to meet with no serious objections. However, the opinion delivered by the Court of Justice of the European Union (CJEU) on 18 December 2014 declaring the incompatibility of that agreement with the requirements under the integration treaties came as a surprise, even as a shock to most observers. It may have brought the project to the end of the road. Essentially, the CJEU found that the draft agreement did not sufficiently respect the autonomy of the EU, permitting interferences of the ECtHR with the exclusive competences of its parent body in Luxembourg. No substantive criticisms were raised, understandably so since Article 6(2) TEU enjoins the EU to adhere to the ECHR.
A basic misconception underlies the opinion of the Court of Justice as well as the views of its Advocate-General. Both assess the institutional linkage from the vantage point of the EU. Although conceding in principle that as a treaty party the EU must accept all the obligations deriving from the European Convention on Human Rights, they hold that in integrating the ECHR into the legal system of the EU, making it an integral part of that latter system with all of its procedural articulations, the CJEU holds a monopoly of authoritative interpretation of the ECHR in relationships among EU member states. This approach overlooks the elementary rule of general international law that the different methods of domestic implementation of an international treaty may not change the substance of that treaty. Primarily, a treaty concluded by the EU remains an international instrument with a binding effect under general international law. A State cannot escape from the clauses of a treaty which it has accepted by invoking its sovereignty, nor can the EU arrogate to itself special rights because it is an entity under international law with specific characteristics. The EU is of course not a State, but under no circumstances can it claim more rights than a State.
The opinion of the Court of Justice remains consistently within this ill-defined conceptual framework. Reference to the basic philosophy of the EU that it has arisen as “a new legal order” (para. 157) is irrelevant regarding its status under general international law. Likewise, when the CJEU emphasizes that the protection of fundamental rights within the EU must be ensured “within the structure and objectives of the EU” (para. 170), it comes close to denying the gist of the European Convention on Human Rights if that proposition is applied to the ECHR as well. The observer is reminded of the attempts by the former socialist countries to adapt the interpretation of the International Covenant on Civil and Political Rights to the essential features of a socialist State, thereby emasculating the Covenant of its essential characteristics of democratic freedom and equality. The autonomy which the EU enjoys does not lift it up in its external relations to a higher level than the other States parties to the ECHR.
A particularly disturbing element of the opinion is the passages where the Court of Justice unhesitatingly affirms that the principle of mutual trust, anchored in the Treaties of the European Union (TFEU), must prevail over the protective function assigned to the Strasbourg Court of Human Rights. It is undeniable, as the jurisprudence of the ECtHR has shown, that even EU members may occasionally or even structurally breach their commitments under the European Convention on Human Rights. By affirming stubbornly that in the area of mutual recognition of national decisions the ECtHR should be prevented from exercising its powers the CJEU seeks to apply its doctrine of primacy of integration law inappropriately, denying the EU’s position of subordination to the ECHR and inflicting at the same time a harsh blow on the role of the ECtHR as the ultimate guardian of human rights in the whole of Europe.
The same criticisms is deserved by the holding of the Court of Justice that the accession agreement must exclude any recourse to the Strasbourg Court where no prior involvement of the EU courts was possible because of the restriction of their powers in the field of the Common Foreign and Security Policy (CFSP). It is one thing for the EU treaties to exclude its courts from reviewing acts of the CFSP on account of their inter-governmental nature. However, the wish to discard the ECtHR in instances where plausibly an allegation of individual injury can be made amounts to a head-on attack on the supervisory role of the ECtHR which the Council of Europe should not accept.
In sum, an ambiguous picture emerges. On the one hand, in the past the Court of Justice of the European Union has consistently followed the jurisprudence of the Strasbourg Court of Human Rights as far as the definition and the meaning of human rights is concerned. Article 52(3) of the European Charter has enjoined the CJEU to continue on that path regarding the rights under the Charter. On the other hand, in Kadi (judgments of 3 September 2008 and 18 July 2013) the CJEU has commenced a line of setting apart the European system of protection of human rights from the framework of general international law, where the UN Security Council plays a pivotal role. With some kind of righteous arrogance, the CJEU claimed a position of superiority without sufficiently explaining its position. Now, by invoking the argument of autonomy, the CJEU claims a position of superiority in respect of the ECtHR.
The Court of Justice must take care to recognize the limits of its jurisdiction. It is an error to believe that the autonomy of the EU elevates the European entity to an unparalleled higher level of juridical status. Autonomy should not be mistaken for the dignity deserved by a holy grail. It must be admitted, though, that the CJEU is not to blame alone. Criticism is also deserved by the ambiguous drafting of the instruments governing the EU’s accession to the European Convention on Human Rights where autonomy is given such a prominent role. However, it remains a fundamental error of the CJEU and its Advocate-General not to have distinguished clearly enough the two functions of the ECHR within the framework of the EU legal order. On the one hand, by the act of accession, the ECHR will become an integral component part of that legal order. On the other hand, however, this does not change the basic fact that the EU, as a contracting party to the ECHR, will become subject to the system of the ECHR with all of its implications, where its internal complexities must be disregarded to the greatest extent possible.
Headline image credit: Courtroom of European Court of Human Rights. Photo by Adrian Grycuk. CC BY-SA 3.0 PL via Wikimedia Commons.