Will the empire strike back? Strasbourg’s reaction to the CJEU’s accession opinion
Annual reports by international courts are rarely the stuff of controversy or harbingers of judicial conflict. Thus the strongly worded response to the European Court of Justice’s (CJEU) Opinion 2/13 (here) in the annual report of the European Court of Human Rights (ECtHR) presented by President Spielmann yesterday warrants a few comments (a provisional version can be found here).
It is recalled that the CJEU considered the draft agreement on the EU’s accession to the ECHR to be incompatible with the Treaties on a number of grounds. Academic criticism followed promptly, not least on this blog (here). The short passage in the President’s foreword to the ECtHR’s annual report, probably squeezed in in the last minute, constitutes a first reaction by the institution most affected by the Opinion. It is worth reproducing the full quote here:
The end of the year was also marked by the delivery on 18 December 2014 of the Court of Justice of the European Union’s (CJEU) eagerly awaited opinion on the draft agreement on the accession of the European Union to the European Convention on Human Rights. Bearing in mind that negotiations on European Union accession have been under way for more than thirty years, that accession is an obligation under the Lisbon Treaty and that all the member States along with the European institutions had already stated that they considered the draft agreement compatible with the Treaties on European Union and the Functioning of the European Union, the CJEU’s unfavourable opinion is a great disappointment. Let us not forget, however, that the principal victims will be those citizens whom this opinion (no. 2/13) deprives of the right to have acts of the European Union subjected to the same external scrutiny as regards respect for human rights as that which applies to each member State. More than ever, therefore, the onus will be on the Strasbourg Court to do what it can in cases before it to protect citizens from the negative effects of this situation.
It is hardly surprising to learn that Strasbourg found the outcome of Opinion 2/13 disappointing. After all, it has thrown a serious spanner in the works of future accession negotiations, which a renowned expert on EU-ECHR relations such as President Spielmann must have realised straight away. What is unusual, is the strong language used in an official document such as this. The President does not hide the Strasbourg’s feelings behind the bush when expressing ‘a great disappointment’ and when speaking of the ‘victims’ of the Opinion.
But judicial politics aside, the question arises whether this statement could herald a new and frostier relationship between the two European courts. Up until now, the courts expressed some pride in their good relations with regular meetings between the judges and their ‘judicial dialogue’. The special relationship between them is epitomised in the Bosphorus case where the ECtHR held that the protection of human rights provided by the European Union was equivalent to what the Convention requires. As a consequence, Member States that would otherwise be responsible for human rights violations rooted in their obligations under EU law (see the Matthews case) enjoy a presumption that their conduct was justified provided that they had no discretion in carrying out their obligations. The presumption can only be rebutted where the applicant can show a manifestly deficient protection in the very case.
The final sentence of the above quote is instructive. By positioning Strasbourg as the last resort for victims of human rights violations and by making it clear that the status quo (i.e. the EU outside the Convention) yields negative effects for these victims, the president paves the rhetorical way for a change of attitude. Of course, we are dealing only with a statement made in an annual report, not in a judgment. Moreover, the statement is signed by only one of the 47 judges, and even though he is the Court’s president, he is no position to dictate the future outcome of decisions.
It is nonetheless worth asking what, if anything, this could mean in practice. One rather drastic option would be for the ECtHR to revoke the Bosphorus presumption, but this seems unlikely. The presumption is based on an assessment of the substantive human rights protection by the CJEU, which certainly has not deteriorated. If anything, the entry into force of the Charter of Fundamental Rights and the CJEU’s recent fundamental rights case law suggest an improvement. Moreover, in terms of judicial politics this would certainly be a big bang, which courts should try to avoid.
What one could imagine, however, is a tightening of the conditions for the application of the presumption so that more cases would be reviewable by Strasbourg. Moreover, it is possible that Strasbourg could give up its Connolly case law, which requires there to be some Member State involvement for the ECtHR to have jurisdiction under Article 1 ECHR so that entirely EU internal situations, e.g. in the field of competition law, would become actionable in Strasbourg.
More subtly still, the Strasbourg court could consider subjecting the EU’s principle of mutual trust to stricter scrutiny. After all, this is an area that is largely immune from fundamental rights review. Of course, the executing Member State in such cases normally has no discretion so that the Bosphorus presumption would kick in. But one could argue that where no judicial review of fundamental rights violations is possible, the ‘equivalent protection’ presumption is rebutted on the basis that the protection in the concrete case was manifestly deficient. Let us remember that the CJEU identified the alleged lack of protection of the principle of mutual trust in the accession agreement as one of the reasons to declare the accession agreement incompatible with the Treaties. This would thus provide Strasbourg with an opportunity to strike back and demonstrate that an exclusion of that principle in the accession agreement would run counter to its overall aim of improving the human rights protection in Europe.
One should be careful, o