The challenging relationship between the European Convention on Human Rights and the EU legal order: consequences of a delayed accession

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.

KEYWORDS:

• Accession EU to ECHR
• Opinion 2/13 CJEU
• European Convention on Human Rights

I. Introduction

In December 2015 the CDDH report on the longer term future of the system of the European Convention on Human Rights was adopted.¹ This report was the outcome of work carried out over a two-year period within a working group of the Steering Committee for Human Rights (the CDDH) and a direct consequence of the Brighton Declaration (20 April 2012).² In this report four overarching areas were considered important for the longer-term effectiveness and viability of the Convention system. One of those challenges was the place of the Convention mechanism in the European and international legal order.³ This topic is new to the reform negotiations that have been taking place in the last decade.⁴ It was considered important to examine the position of the Convention mechanism in the wider legal space (espace juridique) in which it operates, since the European Court of Human Rights (‘the Court’ or the ‘Strasbourg Court’) has held on numerous occasions that ‘the principles underlying the Convention cannot be interpreted and applied in a vacuum’.⁵ There is an ever increasing institutional framework of international mechanisms operating in the field of (specific parts of) international human rights law. The existence of numerous European and international human rights instruments is not in itself a challenge to the longer-term future of the Convention mechanism. However such diversity of mechanisms increases the risk of diverging interpretations of one and the same or interrelated (human rights) norm(s). This in turn may lead to conflicting obligations for States under various mechanisms of international law. It could undermine the credibility of the Convention mechanism if the Convention were to be interpreted in a manner inconsistent with States’ commitments under other treaties.

This article will focus on one perspective of the above-mentioned challenge: the interaction between the Convention and the European Union legal order, and more specifically the consequences of a prolonged non-accession of the EU to the Convention as seen from the perspective of the Strasbourg Court. Before discussing this challenge, a brief description will be given of the origins of the institutional link between the Convention and the EU legal order (paragraph II). I will then turn to the more recent interaction between both systems arguing that both systems were at what seemed to be a collision course at least until recently (paragraph III). In order to conclude that some sort of an institutionalised arrangement between both regional courts working in the same geographic area interpreting similar human rights standards is – i.e. following Opinion 2/13 – desirable (and possible), also in light of the long-term effectiveness of the Convention mechanism (paragraph IV).⁶

II. Origins of the institutional link between the Convention and the EU legal order⁷

When the European Economic Community was founded in 1957, human rights were not at the forefront of the concerns of the founding fathers of the Communities. The focus on economic cooperation was clearly reflected in Article 2 of the EEC Treaty, which stated that the Community’s objective was to promote throughout the Community a harmonious development of economic activities, a continuous and balanced expansion, an increase in stability, a high degree of convergence of economic performance, a high level of employment, sustainable and non-inflationary growth, a high degree of competitiveness, and so forth. This exclusive focus on economic matters and the resulting lack of interest in human rights standards was reflected in the early case law of the Court of Justice (CJEU). In cases like Stork, Geitling and Sgarlata the Luxembourg Court refused to consider the application of human rights standards, since they were not explicitly based on any article of the Founding Treaties.⁸

This approach changed over time with the growing realisation that ever closer economic cooperation could equally affect human rights standards. Especially in those Member States with a strong constitutional tradition, there was debate whether such a powerful organisation should not be bound by certain legal limits. As a result some national constitutional courts reserved the right to declare Community law inapplicable if they deemed it incompatible with domestic constitutional provisions.⁹ Such an approach by domestic constitutional courts would undermine the unity and primacy of Community law. This risk was quickly identified by the Court of Justice and it decided to change its position. In the Nold II judgment, the Court held: ‘As the Court has already stated, fundamental rights form an integral part of the general principles of law, the observance of which it ensures.’¹⁰ However, since the European Communities did not have their own catalogue of human rights, the Court of Justice was compelled to seek inspiration elsewhere. The Luxemburg Court identified two sources: ‘the constitutional traditions common to the Member States’ and ‘international treaties for the protection of human rights, on which the Member States have collaborated or of which they are signatories’.¹¹ Thereby the Court of Justice created a rather unique institutional link with a treaty (the ECHR) originating from a different international organisation (the Council of Europe).

This case law – and hence the institutional link between the Convention and the legal order of the European communities – was later codified in the 1992 Maastricht Treaty.¹² Article F (later Article 6 of the Treaty on European Union) stated that the Union ‘shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms […]’.

A further strengthening of the institutional links between the Convention and the EU legal order was foreseen with the accession of the EU to the Convention. In 2000 the European leaders decided to place this issue on the agenda of the Convention that had been established to make preparations for further institutional reforms of the EU after the Nice Treaty.¹³ Equally, the President of the CJEU raised the matter. At the opening of the judicial year of the ECHR on 31 January 2002, President M. Gil Carlos Rodriguez Iglesias observed:

Si la Cour a toujours évité de prendre position sur l’opportunité d’une adhésion à la Convention, et ce à juste titre, me semble-t-il, certains de ses membres – dont moi-même – se sont exprimés à titre personnel sur cette question, dans le sens d’une position favorable à une telle adhésion, qui renforcerait l’uniformité du système de protection des droits fondamentaux en Europe.¹⁴

The Draft Treaty establishing a Constitution for Europe (TCE), which the Praesidium of this Convention proposed in June 2003, included the possibility of accession to the ECHR in Article I-7 §2: ‘The Union shall seek accession to the European Convention on Human Rights.’¹⁵ The rejection of the document by French and Dutch voters in May and June 2005 brought the ratification process of the TCE to an end, but the specific provision on accession was retained in the subsequent Lisbon Treaty: ‘The Union shall accede […]’ (Article 6, para 2, Treaty on European Union).¹⁶

It has been argued that accession of the European Union could pose a challenge to the Convention mechanism given the influx of new applications, especially as the nature of the cases against the EU would be more complex and place greater demands on the Court’s time, including in view of the potential commercial interests engaged.¹⁷ Most of the Strasbourg actors do not consider this potential challenge to be too alarming:

[…] the additional workload for the Strasbourg Court in the event of accession should be rather limited as the additional cases brought before the Strasbourg Court as a result of accession are expected to mainly concern the cases which have been brought before the CJEU by way of direct actions. […]. There should not, therefore, be an avalanche of EU cases going to the Strasbourg Court once accession has taken place.¹⁸

Whatever one’s appreciation may be, it is perhaps sufficient to note at this point that the Convention system can always be confronted with a sudden influx of new cases (for example due to new societal phenomena raising human rights concerns or due to changing circumstances in a member state allegedly resulting in a deterioration of the human rights situation in that country). In all of these situations it will be a challenge for the Convention system to respond adequately to such a rise in workload whatever the underlying triggering mechanism is.

For me a far greater challenge to the Convention system is if the EU were not to accede for the foreseeable future. The presumption that accession will be delayed for some considerable time is in itself a sensitive starting point. I can vividly remember how long it took the CDDH to reach consensus on this one sentence in the CDDH report on the longer term future of the system of the European Convention on Human Rights: 'It remains to be seen when, how and if accession will be completed' (in paragraph 177). For the sake of clarity, my personal opinion is that accession is still desirable, it is still possible, and it is still legally mandatory. Having said that, I fear that following Opinion 2/13 (in which the CJEU held the draft Accession Agreement was incompatible with EU law) enthusiasm for a return to the negotiating table will not be great. It took a great deal of diplomatic skill to reach the first Accession Agreement. Some of the non-EU parties to the negotiations will be disgruntled. During the first set of negotiations they tried to meet as far as possible some of the concerns expressed by the (CJ)EU during the drafting stages, only to find out that the opinion delivered was hostile and (in the eyes of some) derogatory towards ‘Strasbourg’. At the same time, some Member States of the EU will not, in light of political sensitivities domestically, adopt a resolute approach towards the re-negotiations. It might very well take a long time to be able to adopt a revised Accession Agreement. I fear that a historic opportunity was missed.

If the EU does not accede for the foreseeable future this would pose a risk of the two main European legal systems drifting apart. In this regard I will highlight certain developments in the recent interaction between both systems.

III. Recent interaction between both systems

A. Decreased focus on the convention following the coming into existence of the Charter

The first relevant development in this regard is the coming into existence of the Charter of Fundamental Rights. On 7 December 2000, at the European Council in Nice, the Charter of Fundamental Rights was proclaimed as a political declaration.¹⁹ The Lisbon Treaty invested the Charter with legally binding status via a mere cross reference. As from 1 December 2009, the Charter acquired the same legal status as the Treaties.

The Charter is often qualified as a ‘state of the art’ human rights document. It includes rights and freedoms which were not yet acknowledged in the 1950 ECHR, such as the right to good administration (article 41 of the Charter) or the right of access to documents (article 42 of the Charter). At the same time, however, certain rights were worded differently, for some inexplicable reason, from comparable rights in the ECHR and other human rights instruments. Those disparities create the risk that human rights standards will be interpreted differently in the EU legal order. A risk that is reinforced by the likelihood that the CJEU will become less orientated on the (case-law under the) ECHR as soon as the EU legal order has its own human rights catalogue (i.e. the Charter).

The latter assumption seems to be supported by a research done by De Búrca.²⁰ An interesting difference is shown between the case-law of the CJEU prior to the Charter acquiring the same legal status as the Treaties on 1 December 2009 in comparison to the case-law subsequent to the Charter acquiring the same legal status as the Treaties. From 1998 to 2005, the ECHR was referred to 7.5 times more often than all other human rights instruments the Luxembourg Court relied on, including the Charter. In the period between December 2009 and December 2012, the Court of Justice made reference to or drew on provisions of the Charter in at least 122 judgments. In 27 of these 122 judgments, the CJEU dealt with arguments based on the Charter substantively. The increased reference to the Charter was detrimental to the importance of the ECHR as a source of inspiration. Out of the 122 cases mentioned above, the CJEU referred to the ECHR in just 20 and the CJEU did not refer at all to other sources of human rights jurisprudence. One may conclude that the CJEU has become orientated towards the Charter at the expense of the Convention and the case-law of the Strasbourg Court.

Although it is understandable that the CJEU would primarily draw on its ‘own’ human rights catalogue, it is not conducive for the two main European legal systems developing in harmony.²¹

B. Increased overlap ratione materiae: the combined effect of the Melloni and Åkerberg case-law of the CJEU

The second relevant development concerns the increased overlap as regards the scope of application of both European human rights catalogues ratione materiae. It is sometimes overlooked that the scope of application of Convention and Charter differ and not only because of the differing geographic scope of application.

The Convention is applicable when a given situation is 'within the jurisdiction' of a High Contracting Party (Article 1 ECHR). The notion ‘jurisdiction’ is primarily territorial, i.e. an applicant being physically present on the territory of the respective High Contracting Party. Acts performed or producing effects outside the State’s territory could constitute an exercise of jurisdiction only in exceptional circumstances. The Court’s case-law indicated that such circumstances could exist where State agents exercised authority and control over an individual outside the territory. Exceptional circumstances could also arise when a Contracting State exercises ‘effective control’ over a given situation in an area outside the national territory. This kind of State responsibility does not necessarily extend to situations which can best be described as member state responsibility. The Strasbourg Court clarified its position in the Bosphorus judgment. A High Contracting Party could in principle presume that it is not breaching the ECHR by fulfilling its international obligations, provided the international organisation itself ensured adequate protection of human rights (as was accepted in relation to the EU). Only in exceptional cases, where the protection was manifestly insufficient, could this presumption be rebutted.²² The effect of the Bosphorus-doctrine is that situations in which the European Court of Human Rights has to assess matters pertaining to the EU legal order are as much as possible avoided. I have previously qualified this case-law as the ‘professional courtesy’ approach of the Strasbourg Court.²³ Although this approach has been criticised by some commentators as legal protection offered by the Convention is withheld to certain applicants, showing that kind of judicial restraint was beneficial to a more harmonious cooperation with the ‘other’ European court and in that sense testimony of judicial prudence. Given the lack of a hierarchal relationship between both European courts, it is important to avoid conflicts as much as possible. Even more so because a conflict – once it has materialised – cannot be that easily solved.

The Charter applies to Member States ‘only when they are implementing Union law’ (article 51(1) of the Charter). The Official Explanations annexed to the Charter give a slightly confusing explanation: ‘the requirement to respect fundamental rights defined in the context of the Union is only binding on the Member States when they act in the scope of Union law’. The latter notion (‘act in the scope of Union law’) is obviously much broader than the text of the underlying provision seems to suggest (‘implement Union law’). In May 2013, the CJEU provided (more) clarity in the Åkerberg case.²⁴ The Court noted that ‘[t]he requirement to respect fundamental rights defined in the context of the Union is only binding on the Member States when they act in the scope of Union law’ (paragraph 21). According to the Court, it was thus not strictly necessary for the national legislation to have been adopted for the implementation of EU law. It was sufficient that the situation fell within the scope of EU law. This significantly increased judicial oversight by the CJEU in human rights affairs. While this increased judicial oversight must be welcomed, it also implies a greater likelihood that the CJEU rules on matters which the ECtHR traditionally has qualified as being within the ‘jurisdiction’ of its High Contracting Parties.

This would not necessarily be problematic. Article 53 of the Charter explicitly states that

[n]othing in this Charter shall be interpreted as restricting or adversely affecting human rights and fundamental freedoms as recognised, in their respective fields of application, by Union law and international law and by international agreements to which the Union, the Community or all the Member States are party, including the European Convention for the Protection of Human Rights and Fundamental Freedoms, and by the Member States’ constitutions.

However, the interpretation given to Article 53 of the Charter by the CJEU in February 2014 in the Melloni case²⁵ is not so reassuring. In its judgment the CJEU considered the relationship between the Charter and constitutional guarantees on a domestic level (of which the Convention can be an integral part). The CJEU refused an interpretation of Article 53 of the Charter allowing a Member State to apply the standard of protection of fundamental rights guaranteed by its constitution when that standard is higher than that deriving from the Charter. Such an interpretation of the Charter would undermine the principle of the primacy of EU law inasmuch as it would allow a Member State to disapply EU legal rules which are fully in compliance with the Charter where they infringe the fundamental rights guaranteed by that State’s constitution. The Court referred to settled case law on the principle of primacy of EU law and the fact that rules of national law, even of a constitutional order, cannot be allowed to undermine the effectiveness of EU law. Only where an EU legal act calls for national implementing measures, national authorities and courts remain free to apply national standards of protection of fundamental rights, on condition that the level of protection provided for by the Charter, as interpreted by the Court, and the primacy, unity and effectiveness of EU law are not thereby compromised. From an EU law perspective, the Melloni judgment makes perfect sense. The principle of primacy of EU law is the holy grail in the EU legal order and it is settled case-law of the Luxembourg Court that this primacy cannot be endangered by any rules of national law, even of a constitutional nature. It is one of the major differences between Convention law and EU-law: where the Convention sets out minimum standards, EU law sets the standard. From the perspective of the Convention system, the Melloni judgment is less easy to understand. A higher standard of human rights protection is sacrificed for the application of a legal doctrine.

For the purposes of this article, it is important to note that the combined effect of this 2013 CJEU case-law is that a very broad application of the Charter is advocated (Åkerberg) which then dictates the level of human rights protection (Melloni). Once again, from an EU law perspective, this case-law makes a lot of sense. Nor is it wrong per se to boost the profile of the Charter. However, the case-law did not necessarily demonstrate the same ‘professional courtesy’ approach as the ECtHR had adopted in its Bosphorus-ruling. And it was not necessarily beneficial to avoiding overlap between the application of the Convention and the Charter and to ensuring a more harmonious cooperation between both European courts.

C. C’est le ton qui fait la musique

The working relationship between both European courts is to a certain (and perhaps large) extent influenced by interpersonal relationships between judges of both courts. Whether workable solutions are found for issues of common interest is not only dependent on the institutional arrangements between both courts but also on more elusive factors such as collegial esprit. The CDDH report on the longer term future of the system of the European Convention on Human Rights stresses the importance of judicial dialogue among international courts in this regard. Regular encounters may contribute to the mutual transfer of knowledge concerning relevant jurisprudence and may thereby foster greater understanding for the other institutions’ approach to certain common problems. This helps to keep channels of communication open, also to express concerns in a more informal manner.

I think it is fair to say that the tone of Opinion 2/13 did not help in this regard. As mentioned above Article 6, paragraph 2, of the Treaty on European Union foresees in the accession of the EU to the Convention. Following complicated negotiations²⁶ the negotiators were able to finalise the draft accession agreement on 5 April 2013. On 4 July 2013 the CJEU was asked by the Commission, as per Article 218(11) TFEU, to give its opinion on the competence of the European Union to conclude it. On 18 December 2014 the CJEU delivered its opinion. It held that the draft Accession Agreement is incompatible with EU law. The central theme of the Opinion is that the draft Accession Agreement does not sufficiently take into account the autonomy of EU law, the position of the CJEU itself and certain specific features of Union law as they currently exist.²⁷ While these are legitimate concerns for the CJEU to raise, the tone of the opinion raised eyebrows. The opinion seems to have been written with one purpose only: to kill off accession altogether. The objections attack external oversight as such. The safeguarding of the exclusive jurisdiction of the CJEU seems to have been of a greater concern to the CJEU than the long term future of human rights protection in Europe and the closing of a long-standing gap in human rights protection. The lack of constructive esprit on the part of the Luxemburg court in such a historical process with such significance to the human rights infrastructure in Europe is disturbing. The lack of demonstrating understanding for the fact that negotiations entail by definition a compromise and not a dictate by one of the negotiators is shocking. The complete disregard of the imperative legal obligation laid down in Article 6 TEU and the political agenda as expressed by the Member States and other institutions involved is alarming.

D. Appraisal

My personal assessment of the developments mentioned above is that the CJEU over the last decade – quite understandably – shifted its focus from the Convention towards the Charter. This shift in focus accelerated as from December 2009 when the Charter became legally binding in the EU legal order. The autonomous profile of the Charter was further boosted by the combined effect of the 2013 Åkerberg-Melloni case-law advocating a very broad application of the Charter whereby the level of human rights protection is dictated by that Charter. Case-law which makes perfect sense from an EU law perspective (e.g. primacy of EU law and ensuring the principle of interstate trust) but which did not necessarily demonstrate the same ‘professional courtesy’ approach as the ECtHR had adopted in its Bosphorus-ruling. It was not necessarily beneficial to avoiding overlap between the application of the Convention and the Charter and to ensuring a more harmonious cooperation between both European courts. The manner in which subsequently the draft Accession Agreement was torpedoed by the CJEU in December 2014 created the impression that the CJEU was on a kind of collision course with the Convention system. Relations between both European courts had reached rock bottom.

In such a situation there would be a real risk that the two main European legal systems drift apart. The risks of diverging interpretations of fundamental rights by the CJEU and the Strasbourg Court would in turn undermine the coherence of the European legal space. That risk of fragmentation of the European legal space in the field of human rights protection would pose a major challenge to the credibility, authority and long-term future of the Convention system.

E. Rapprochement of two hedgehogs?

The state of affairs as described above provoked various counter-reactions. Without attempting to be exhaustive, I want to draw attention to some aspects.

The first one is the almost unanimous negative appraisal of Opinion 2/13. It is hard to find any commentary which is supportive of the opinion. The reaction was ‘a combination of shock, disbelief and protest’,²⁸ and the opinion was described as ‘a legal bombshell’²⁹ and ‘fundamentally flawed [… and] an unmitigated disaster’.³⁰ Member States and other institutions involved (both within the EU and the Council of Europe) were more reserved, but it is hardly a secret that the reaction in most capitals was equally disapproving.

The second aspect is the discontent voiced by some domestic (constitutional) courts with certain aspects of CJEU case-law defending so rigorously the primacy of Union law and the (quasi-)automatic application of legal doctrines such as the principle of mutual trust. In an Order of 15 December 2015,³¹ the German Federal Constitutional Court held that it would review application of such legal doctrines if this is indispensable to protect the constitutional identity guaranteed by the Grundgesetz. In doing so, it also stressed that the level of human rights protection offered by the Charter should not fall below the minimum guarantees as set out in the Convention:

Union law can provide more extensive protection (cf. Art. 52 sec. 3 sentence 2 of the Charter of Fundamental Rights); the level of protection provided by the Charter of Fundamental Rights may, however, not fall below that of the Convention. […] Against this backdrop, the guarantees of Article 6 ECHR, as interpreted by the European Court of Human Rights, establish minimum guarantees also with regard to the Framework Decision, which may not fall below them.

The third aspect is the reaction by the Strasbourg Court in the immediate aftermath of Opinion 2/13. Then ECtHR President Dean Spielmann said at the Opening of the Judicial Year in January 2015: 'For my part, the important thing is to ensure that there is no legal vacuum in human rights protection on the Convention’s territory, whether the violation can be imputed to a State or to a supranational institution'. This remark was considered by some as a ‘warning’ to the CJEU that the Strasbourg Court might change its ‘professional courtesy’ approach towards the Luxembourg Court now that the CJEU was clearly following its own agenda and was not willing to subject itself to external scrutiny.

The cumulative effect of these three reactions, perhaps in combination with the fact that the composition of the CJEU had changed in the meantime, resulted in a ‘softening’ of the approach taken by the CJEU. In the case of Aranyosi,³² the CJEU held that 'in exceptional circumstances' a Member State may ignore the principle of mutual trust. In case of information that is 'objective, reliable, specific and properly updated' pointing to the existence of 'deficiencies, which may be systemic or generalised, or which may affect certain groups of people, or which may affect certain places of detention'. That information may be obtained from, inter alia, 'judgments of international courts, such as judgments of the ECtHR, judgments of courts of the issuing Member State, and also decisions, reports and other documents produced by bodies of the Council of Europe or under the aegis of the UN'.³³ While the Aranyosi judgment is undoubtedly a welcome development it is still at odds with the Strasbourg approach as it requires some kind of generality of the risk required to ignore the principle of mutual trust. But at least it attempts to bridge the gap between both European courts instead of further widening it.

A couple of weeks later the Strasbourg Court gave another ‘warning shot across the bow’. In the case of Avotiņš v. Latvia,³⁴ the European Court of Human Rights delivered a judgment concerning the mutual recognition of judgments in civil matters under the Brussels I Regulation. The applicant claimed that the recognition by Latvia of a Cyprian judgment ordering him to repay a debt would violate his right to a fair trial under Article 6 ECHR as he had never received the summons of the Cyprian court at his know address in Latvia and could therefore not prepare to defend himself. While the Strasbourg Court confirmed its Bosporus-doctrine in principle, it expressly stated that

[…] the creation of an area of freedom, security and justice in Europe, and the adoption of the means necessary to achieve it, [are in principle] wholly legitimate […] from the standpoint of the Convention. Nevertheless, the methods used to create that area must not infringe the fundamental rights of the persons affected by the resulting mechanisms, as indeed confirmed by Article 67(1) of the TFEU. However, it is apparent that the aim of effectiveness pursued by some of the methods used results in the review of the observance of fundamental rights being tightly regulated or even limited. Hence, the CJEU stated recently in Opinion 2/13 that “when implementing EU law, the Member States may, under EU law, be required to presume that fundamental rights have been observed by the other Member States, so that   …  , save in exceptional cases, they may not check whether that other Member State has actually, in a specific case, observed the fundamental rights guaranteed by the EU”. Limiting to exceptional cases the power of the State in which recognition is sought to review the observance of fundamental rights by the State of origin of the judgment could, in practice, run counter to the requirement imposed by the Convention according to which the court in the State addressed must at least be empowered to conduct a review commensurate with the gravity of any serious allegation of a violation of fundamental rights in the State of origin, in order to ensure that the protection of those rights is not manifestly deficient.³⁵

It thus stressed that the application of the principle of mutual trust cannot result in a violation of the Convention which national courts need to observe. The Court also clarified that some shortcomings perhaps are not sufficiently serious to qualify as ‘manifest deficiencies’, but 'regrettable' nonetheless.³⁶ In short, the Strasbourg Court made very clear that they consider that the automatic application of EU legal concepts endangers the protection of Convention rights in specific cases and that they consider themselves competent to step in if the need arises. At the same time, the Bosphorus-doctrine was not abandoned which would have created a new deadlock in the relation between both European courts.

The CJEU had the opportunity to add a new chapter to this renewed dialogue between both European courts in the case of C.K. and others.³⁷ It concerned a transfer under the Dublin III Regulation from Slovenia to Croatia of a woman suffering from mental instability after having given birth. Despite the lack of 'substantial grounds for believing that there are systemic flaws in the asylum procedure and the conditions for the reception of asylum seekers in Croatia',³⁸ the transfer was found to be in breach of Article 4 of the Charter. However, there is one catch. In paragraph 73 the CJEU stated that

it cannot be ruled out that the transfer of an asylum seeker whose state of health is particularly serious may, in itself [italics added], result, for the person concerned, in a real risk of inhuman or degrading treatment within the meaning of Article 4 of the Charter, irrespective of the quality of the reception and the care available in the Member State responsible for examining his application.

Arguably, the principle of mutual trust was not at all at stake in the case of C.K. and others. Therefore, it remains to be seen whether the judgment in the C.K. and others case indicates a willingness from the CJEU to further bridge the gap.

IV. Desirability of an institutionalised arrangement between both regional courts

Where does that leave us? By December 2014, relations between both European courts had reached rock bottom. Since then both European courts have (partly due to the fact that they felt the pressure of national constitutional courts) done their best to avoid a further widening of the gap between them. In its case-law, the CJEU has demonstrated a greater awareness of the potentially problematic consequences of the automatic application of EU legal doctrines such as the principle of mutual trust. There seems to be a greater willingness to engage in a dialogue again.³⁹

However, a gap between the Convention and the EU legal order still remains and a bridge over troubled waters is still desired. To a certain extent this bridge requires a change in mentality. Human rights standards should not (merely) be considered as instrumental to achieving other policy goals such as facilitating economic cooperation as EU policy papers often seem to suggest.⁴⁰ Human rights standards should not be seen as annoying obstacles to upholding EU legal doctrines such as interstate trust and primacy of EU law as Opinion 2/13 seemed to suggest. It is those legal doctrines themselves that should be considered instrumental. Instrumental to achieving a Union of shared values. One of those shared values is the respect for fundamental rights.⁴¹

At the same time, the problematic interaction between both European courts in recent years highlights the lack of an institutionalised arrangement between both regional courts working in the same geographic area interpreting similar human rights standards. Such a structural solution to a potential threat to coherence is vital. In that sense, Opinion 2/13 should not be considered as a fait accompli. Although admittedly, EU accession to the Convention is only one modality of such an institutionalised arrangement between both European courts.

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.

14 See http://www.ena.lu/address_given_gil_carlos_rodriguez_iglesias_strasbourg_31_january_2002-020004720.html.

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).