- According to the Court of Justice, under the now available legal framework the accession of the EU to the European Convention on Human Rights (Convention, ECHR) cannot take place lawfully as a matter of EU law;
- This is because the proposed treaty framework for the accession does not guarantee that the autonomy and the specific characteristics of the EU legal order will be safeguarded;
- With this assessment, the Court of Justice appears to be contradicting its long favoured idea of cooperative constitutionalism, and it seems to be more explicitly confirming the inviolability of the EU legal order;
- The Court of Justice also confirmed that the protection of fundamental rights in the EU can only be interpreted within the framework of EU law and of the common policies of the EU;
- The interpretative construction followed in the Opinion does not include many novelties, however, it seems to have been developed from the contradictory premise that accession to the ECHR, which is aimed at enhancing and supplementing the Union legal order, must be excluded because it is liable to modify the fundamental characteristics of EU law;
- Although the Opinion appears as defendable on formal and functional grounds, the delay in the accession – in case the legal hiatuses indicated by the Court of Justice can in fact be remedied – does not do any favours to the EU often criticised for its value deficits;
- Although the EU and the ECHR have been able to coexist for decades without major conflicts, with the increase in the number and the intensity of EU legislation affecting the protection of fundamental rights keeping the EU outside of the direct jurisdiction of the European Court of Human Rights cannot be permitted;
- This is the case even if the severe structural and regularly reappearing legitimacy problems of the ECHR and its system of enforcement are taken into consideration.
After 1996 (2/94), the Court of Justice was again given the opportunity to make a legal assessment of the accession of the European Union to the European Convention on Human Rights. Although under Article 6(2) TEU the constitutional basis of the accession has fundamentally changed, the Court of Justice again decided against the legal permissibility of the accession. On the basis of the numerous substantive and legal hiatuses found by the Court of Justice, it was the legal preparation of the accession which suffered from serious deficits. The most important deficit mentioned by the Court of Justice was that the legal documents preparing the accession did not take into account in sufficient detail the doctrines developed by the Court of Justice for the EU legal order, and the relevant legal provisions failed to ensure that these doctrines remain unaffected by the accession. In particular, the Court of Justice argued that the accession documents do not contain explicit safeguards which would protect the autonomy and the specific characteristics of the EU legal order from the influence of the ECHR.
The Opinion – similar to the judgment in Kadi concerning the relationship between the EU legal order and international law – confirmed the autonomy of the EU legal order from other legal orders, and declared its inviolability. The Court of Justice emphasised repeatedly that its assessment of the accession would be carried out having regard to the legal benchmarks of the autonomy and the inviolability of the EU legal order, and it would only declare its legal approval of the accession when beyond assuming the obligations necessary for bringing the accession to fruition the autonomy and special characteristics of Union law are not violated. This hard-handed approach – which more or less reflects the status achieved by the EU legal order – may seem rather insensitive from the Court of Justice. A couple of decades ago (So lange I and So lange II) it could merely hope that these important characteristics of the nascent Union legal order would be confirmed by benevolent and cooperative national constitutional or other higher courts unexpectedly confronted with judicial claims for the autonomy and supremacy of the EU legal order. The direct enforceability of provisions of autonomous EU law in national legal systems – especially, when it was suspected of violating values and principles protected in national constitutional order – did in fact require the willingness of reception from the recipient side, and it could have failed without the recipient deciding to dispense with the use of the competences available to it. The insistence of the Court of Justice that the accession cannot in any circumstances lead to the violation of the fundamental characteristics of the EU legal order indicates a departure by the Court of Justice from this cooperative form of constitutionalism in Europe.
The Opinion – following previous jurisprudence on the protection of fundamental rights in the Union – confirmed that the Court of Justice engages with the protection of human rights not on a universal basis, but only within the legal, political and governance framework provided by EU law and by the common EU policies. This does not mean that the Court of Justice does not take the protection of fundamental rights in the EU seriously. Rather, it expresses the inevitable fact that in the interpretation and protection of fundamental rights the Court of Justice will have regard to the specificities of EU law and EU policies, and it will pursue functional and purposive methods of judicial interpretation as standard methods of interpretation in EU law. The Opinion emphasised that the protection of fundamental rights in the EU has characteristics which are specific to the EU context, and sustaining and safeguarding these characteristics cannot be jeopardised by the accession of the Union to the ECHR.
The Opinion, which elected to focus on the autonomy and the specific characteristics of the EU legal order and of the protection of fundamental rights in the EU, rejecting the accession of the EU to the ECHR on legal grounds, can be criticised most vehemently for the contradiction in its reasoning according to which the accession intending to modify the existing legal and constitutional settlement of the Union cannot take place because the current legal framework for the accession does not exclude the Union’s membership in the ECHR altering the acquired characteristics of Union law and of EU human rights law. Although Article 6(2) TEU governing the accession could be interpreted in formal terms that it must take place within the current constitutional framework – which framework could indeed incorporate the autonomy and the specific characteristics of the EU legal order as its components, in case the value-based criticism of EU law and governance are taken seriously, the accession to the ECHR must in fact take place in order to enhance the constitutional and other qualities of the EU legal order, and to remedy its current constitutional deficits. In this connection, it must not be forgotten that the EU constitutional and legal order was created for the enforcement of a particular and fragmented economic and social order (i.e., mainly for the integration of open competitive markets), which can indeed be criticised on value- and human rights grounds of value- and human rights. When the Member States in Article 6(2) TEU had declared their intention to enhance or reform this economic and social order, it seems rather controversial to argue that the accession to ECHR must not alter its constitutional and legal superstructure available for the effective enforcement of the corresponding policies. Naturally, the implicit argument by the Court of Justice that questioning the autonomy and specific characteristics of the EU legal order – no matter for what purpose it takes place – could jeopardise the sustainability of the ever evolving and expanding European political and economic integration, can be accepted. After all, the specific fundamental principles and the autonomy of the EU legal order were not developed to please lawyers favouring the effective enforcement of legal obligations, but in service of the functional purpose that without these the effective and early realisation of the common policies undertaken as obligations by the Member States could be undermined.
In case the legal hiatuses revealed by the Court of Justice cannot be remedied – and, in our view, the drafters of the accession documents have a near impossible task to meet the demands of the Opinion, the relationship between the Union and its system of human rights protection and the Convention will continue to be determined in the current framework of parallel coexistence, which so far has been devoid of major conflicts. Maintaining good relations under this framework will not be difficult, as the broad margin of appreciation provided in the Bosphorus ruling for the protection of fundamental rights in the Union has reduced the possibility of systemic conflicts to the minimum. Naturally, this necessitates willingness from the Union to give effect – under the idea of cooperative constitutionalism – to criticism formulated under ECHR law (cf. M.S.S. and N.S. cases). However, in case the Union continues to increase the intensity of its legislative activity affecting the protection of fundamental rights, and it resolves – in the interest of promoting cooperation among the Member States – issues affecting the protection of fundamental rights with ’creative’ instruments, created following considerations of functionality and effectiveness (e.g., in the area of criminal law, making the obligation of mutual recognition comply with constitutional standards through the use of dubious minimum-constructions in the protection of fundamental rights), the leeway enjoyed under the ECHR is likely to become less comfortable, and only accession to the ECHR will provide a reassuring solution for citizens, economic operators and for the Member States.
The necessity for the Union to accede to the Convention – as it follows from value-based and other criticism of the protection of fundamental rights in the EU – remains pressing despite the severe structural problems of the collective system for the protection of fundamental rights under the ECHR. The European Court of Human Rights has for long been operating beyond the limits of its capacities, which would further deteriorate with the gradual emergence of litigation affecting European Union matters. The Strasbourg system has also been weakened by the increasing willingness of its Contracting States to question the legitimacy of the judgments delivered by the Court of Human Rights. This problem would be further deepened when the EU Member States would object using the European Union framework to Strasbourg rulings establishing hiatuses in the protection of fundamental rights in EU law, in particular, when ECHR standards would contradict Member State intentions to achieve the effective enforcement of common European policies.
The views expressed above belong to the author and do not in any way represent the views of the HAS Centre for Social Sciences.