The Court of Justice of the European Union (CJEU) has delivered an opinion on the draft agreement on the European Union (EU) accession to the European Convention on Human Rights (ECHR). The CJEU declared the draft agreement incompatible with EU law, and plans must be made to reformulate an accession plan. The decision has been criticised by many as being overly cautious and that human rights principles were not given enough weight in formulating the opinion.
The Treaty of Lisbon not only made the Charter of Fundamental Rights legally binding in 2009, but it also created a legal obligation for the EU to accede to the ECHR. Article 6 of the Treaty on the European Union now states “The Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms.” The draft agreement, as negotiated by the Commission with the Council of Europe, was submitted to the CJEU to clear its compatibility with EU law; however, in December, the CJEU issued a shock judgment, Opinion 2/13, which rejects existing proposals.
The CJEU found that the proposals did not present sufficient safeguards to protect the specific characteristics of the European Union, and some of the proposals “specifically disregard the intrinsic nature of the EU”. One point of concern for the CJEU was that the ECHR gives Contracting States the power to lay down higher standards of protection than those guaranteed by the ECHR. The CJEU states that this may allow for variation in the laws between Member States which threatens the “primacy, unity and effectiveness of EU law” without proper safeguards.
In particular, the judgment centred on the threat that the European Court of Human Rights would pose to the powers and jurisdiction of the CJEU. The CJEU ruled that under the current terms, accession would threaten the preliminary ruling procedure, the exclusive jurisdiction of the CJEU in interpreting EU law and secondary law, the power of judicial review of matters of common and foreign and security policy and its position as arbitrator of disputes between Member States.
Advocate General Kokott, had issued an opinion last year recommending, with qualifications, that the agreement be accepted. The CJEU’s judgment has been heavily criticised by legal scholars. It has been described as “fundamentally flawed” by Steve Peers, who suggests that the judgment protects EU law so strictly as to ignore the fundamental principles of the Union. Walther Michl suggests that the Court’s argument was not compelling and could be attributed to exaggerated cautiousness. He also suggests that the overarching sense from the opinion was that the CJEU feared losing its influence. Many are of the opinion that the judgment presents so many obstacles to accession that it makes negotiation of a new accession agreement close to impossible.
Secretary-General of the Council of Europe, Thorbjorn Jagland found the decision of the CJEU worrying, but asserted that the EU should be a part of the Convention. President of the Parliamentary Assembly of the Council of Europe, Anne Brasseur was still hopeful for EU accession and was confident that the legal hurdles identified by the Court could be overcome.
Click here to read the press release from the ECJ.
Click here to read the full text of Opinion 2/13.