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ABSTRACT
The consequences of a prolonged non-accession of the European Union to the European Convention on Human Rights following Opinion 2/13 of the Court of Justice of the European Union may very well affect the longer-term effectiveness and viability of the Convention system. This contribution gives a succinct analysis of the institutional link between the Convention system and the EU legal order, and of the more recent interaction between the two systems, arguing that both were on what seemed to be a collision course until recently. The author stresses the continued need for an institutionalised arrangement between both regional courts working in the same geographic area interpreting similar human rights standards.
Disclosure statement
No potential conflict of interest was reported by the author.
Notes on contributor
Martin Kuijer is the Legal Adviser of the Netherlands Ministry of Justice and Security, (substitute) member of the Venice Commission and Professor of human rights law at the VU University Amsterdam. In 2014–2015 he was the Chairperson of the Council of Europe Working Group on the longer term future of the European Court of Human Rights. This article reflects his personal views.
Notes
1 Doc. CDDH(2015)R84 Addendum I (http://www.coe.int/t/dghl/standardsetting/cddh/reformechr/CDDH(2015)R84_Addendum%20I_EN-Final.pdf).
2 See paragraphs 35c to 35f of the Brighton Declaration.
3 The others were the national implementation of the Convention, the authority of the Court, and the execution of judgments and its supervision.
4 See, inter alia, the collected texts in ‘Guaranteeing the effectiveness of the European Convention on Human Rights’ (Council of Europe, 2004) and ‘Reforming the European Convention on Human Rights: Interlaken, İzmir, Brighton and beyond – A compilation of instruments and texts relating to the ongoing reform of the ECHR’ (Council of Europe, 2014). See also my speech ‘The Interlaken/Izmir/Brighton process – outside and inside evaluations’ at the conference on the long-term future of the European Court of Human Rights held in Oslo in April 2014 (Proceedings, p. 33–38). All three publications can be downloaded via http://www.coe.int/t/DGHL/STANDARDSETTING/CDDH/REFORMECHR/Publications/index_publications_en.asp.
5 For example, ECtHR [GC] 18 December 1996, Loizidou v. Turkey (merits), appl. no. 15318/89, para. 43. See also in that respect Article 53 of the Convention.
6 See also J. Polakiewicz, ‘Accession to the European Convention on Human Rights (ECHR)’, Human Rights Law Journal 36 (2016): 10–22.
7 This section is based on an earlier publication; see M. Kuijer, ‘Fundamental Rights Protection in the Legal Order of the European Union’, in Institutional Law of the European Union, eds. S. Blockmans and A. Lazowski (London: Elgar Publishing, 2016), 220–59.
8 Case 1/58, Stork v High Authority [1959] ECR 17; Joined Cases 36, 37, 38 and 40/59, Geitling v High Authority, [1960] ECR 423 and Case 40/64, Sgarlata v Commission [1965] ECR 215.
9 The most famous example is the Solange judgment of the Bundesverfassungsgericht: [1974] 2 CMLR 540.
10 See Case 4/73, Nold II [1974] ECR 508, para. 13.
11 See also Case 36/75, Rutili [1975] ECR 1219; Case 149/77, Defrenne v Sabena [1978] ECR 1365; Case 44/79, Hauer v Land Rheinland-Pfalz [1979] ECR 3727 and Case 155/79, A.M. & S. [1982] ECR 1575.
12 A reference to the ECHR had already been incorporated into the Single European Act of 1986.
13 The 2000 Laeken declaration on the future of the European Union, to be found on http://european-convention.eu.int/pdf/lknen.pdf. The idea had previously been proposed by the Commission in 1979. In 1990 the Commission repeated its proposal in a Communication to the Council. On 30 November 1994, the Council decided to seek the advice of the Court of Justice. The result was Opinion 2/94 ([1996] ECR I-1759), in which the CJEU observed that accession was impossible in the light of Community law as it existed at the time, since there was no firm legal basis for it.
15 CONV 820/03, Draft Treaty establishing a Constitution for Europe submitted by the President of the Convention to the European Council meeting in Thessaloniki on 20 June 2003. In an earlier version the text was formulated more cautiously: ‘the Union may accede’ (Doc. CONV 528/03, 6 February 2003).
16 As can also be seen in Doc. CIG 87/2/04 of 29 October 2004.
17 See paragraph 178 of the CDDH report on the longer term future of the system of the European Convention on Human Rights.
18 Accession by the European Union to the European Convention on Human Rights – Answers to frequently asked questions, Directorate General of Human Rights and Rule of Law (DGI), 1 June 2010, http://www.echr.coe.int/Documents/UE_FAQ_ENG.pdf. See also the Presentation to the 3rd meeting by the Registrar of the European Court of Human Rights, doc. GT-GDR-F(2014)021, p. 6, also reproduced in doc. GT-GDR-F Inf. (2015)014.
19 2000/C 364/01; see e.g. G. de Búrca, ‘The Drafting of the European Union Charter of Fundamental Rights’, European Law Review (2001): 126–38.
20 G. de Búrca, ‘After the EU Charter of Fundamental Rights: The Court of Justice as a Human Rights Adjudicator?’, Maastricht Journal of European and Comparative Law 20 (2013): 168.
21 Rick Lawson, ‘Case C-17/98, Emesa Sugar (Free Zone) NV v. Aruba, Order of the Court of Justice of 4 February 2000, nyr. Full Court’, Common Market Law Review 37, no. 4 (2000): 983–90.
22 ECtHR 30 June 2005, Bosphorus Airlines v Ireland, appl. no. 45036/98, §§ 155 and 156.
23 See more elaborately M. Kuijer, ‘Het Europees Hof voor de Rechten van de Mens in de politieke arena’, in 55 jaar Europees Verdrag voor de Rechten van de Mens 1950–2005, eds. T. Barkhuysen, M. Kuijer, and R.A. Lawson (Leiden: NJCM, 2006), 134–45.
24 C-617/10, 7 May 2013, Åklagaren v Hans Åkerberg Fransson. See also: E. Hancox, ‘The Meaning of “Implementing” EU law under Article 51(1) of the Charter: Åkerberg Fransson’, Common Market Law Review 50, no. 5 (2013): 1411–31 and M.A. Fierstra, ‘Åkerberg Fransson: ruim toepassingsgebied van Handvest op handelingen van lidstaten’, Nederlands Tijdschrift voor Europees Recht (2013): 197–205.
25 C-399/11, 26 February 2013, Stefano Melloni v Ministerio Fiscal, paras 56–60.
26 See on this issue M. Kuijer, ‘Fundamental Rights Protection in the Legal Order of the European Union’, in Institutional Law of the European Union, eds. S. Blockmans and A. Lazowski (London: Elgar Publishing, 2016), 220–59.
27 See also the view of Advocate General Kokott, delivered on 13 June 2014 (ECLI:EU:C:2014:2475).
28 Martin Scheinin, ‘CJEU Opinion 2/13 – Three Mitigating Circumstances’, VerfBlog 2014/12/26, http://www.verfassungsblog.de/cjeu-opinion-213-three-mitigating-circumstances/
29 Antoine Buyse, ‘CJEU Rules: Draft Agreement on EU Accession to ECHR Incompatible with EU Law’, ECHR Blog 2014/12/20, http://echrblog.blogspot.nl/2014/12/cjeu-rules-draft-agreement-on-eu.html. Not to be mistaken with a ‘Christmas bombshell’ as used by S. Douglas-Scott in ‘Opinion 2/13 on EU Accession to the ECHR: A Christmas bombshell from the European Court of Justice’ (www.ukconstitutionallaw.org; 24 January 2014).
30 Steve Peers, ‘The CJEU and the EU’s Accession to the ECHR: A Clear and Present Danger to Human Rights Protection’, EU Law Analysis 2014/12/18, http://eulawanalysis.blogspot.nl/2014/12/the-cjeu-and-eus-accession-to-echr.html
31 2 BvR 2735/14, paragraph 98; ECLI:DE:BVerfG:2015:rs20151215.2bvr273514 (http://www.bverfg.de/e/rs20151215_2bvr273514en.html).
32 Judgment of 5 April 2016, Aranyosi and Căldăraru, C-404/15 and C-659/15 PPU, EU:C:2016:198.
33 Ibidem, paragraph 89.
34 ECtHR [GC] 23 May 2016, Avotiņš v. Latvia, appl. no. 17502/07.
35 Ibidem, paragraphs 114–15.
36 Ibidem, paragraph 121: ‘[The automatic application of the Brussels I Regulation by the domestic court] could in theory lead to a finding that the protection afforded was manifestly deficient such that the presumption of equivalent protection of the rights of the defence guaranteed by Article 6 § 1 is rebutted. Nevertheless, in the specific circumstances of the present application the Court does not consider this to be the case, although this shortcoming is regrettable’.
37 Judgment of 16 February 2017, C.K. and others, C-578/16 PPU, ECLI:EU:C:2017:127.
38 Ibidem, paragraph 71.
39 A delegation from the Court of Justice of the European Union, headed by its President, Koen Lenaerts, paid a working visit to the European Court of Human Rights on 16 October 2017. The visiting judges took part in roundtable discussions with members of the Court and Registry. The discussions concerned recent case-law of the two courts and recent developments within both systems. While the press release states that such visits take place annually, no such visit appears to have been taken place in 2015 immediately following Opinion 2/13.
40 The introduction to the 2013 EU Justice Score Board is quite telling in this regard: ‘Predictable, timely and enforceable justice decisions are important structural components of an attractive business environment’.
41 See inter alia remarks of First Vice-President Frans Timmermans on 12 April 2017 concerning the Rule of Law in Hungary (http://europa.eu/rapid/press-release_SPEECH-17-966_en.htm).