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Spaventa, E. (2015) 'A very fearful Court? The protection of fundamental rights in the European Union after

Opinion 2/13.', Maastricht journal of European and comparative law., 22 (1). pp. 35-56.

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Spaventa, E. (2015) 'A very fearful Court? The protection of fundamental rights in the European Union after Opinion

2/13.', Maastricht journal of European and comparative law., 22 (1). pp. 35-56. Copyright
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 A VERY FEARFUL COURT?

The protection of Fundamental Rights in the European Union after Opinion 2/13

Eleanor Spaventa

Abstract
In December 2014 the Court of Justice of the European Union found, in Opinion 2/13, that
the Draft Agreement for the EU accession to the ECHR was not compatible with the Treaties;
unfortunately, some of the grounds relied upon by the Court will be difficult to remedy in a
new agreement, even should the other parties to the ECHR be willing to negotiate a new
agreement. This contribution recalls the reasons why accession was deemed necessary, and
engages in a critical analysis of the Court’s ruling. In particular, it takes issue with the
Court’s approach to justice and home affairs, where the Court would like the accession
agreement to somehow relieve the Member States of some of their ECHR obligation when
giving effect to legislation based on ‘mutual trust’. The article then suggests that the three
political institutions should simply declare that they consider themselves bound by the ECHR
and that they will act without delay when and if the European Court of Human Rights should
find that a piece of Union law is incompatible with the Convention.

Keywords: Opinion 2/13; Fundamental Rights; EU; Accession; ECHR; International

Agreements

§1. INTRODUCTION

It is well known that whilst all of the Member States of the European Union are signatories to
the European Convention on Human Rights (ECHR), and subject to the jurisdiction of the
European Court of Human Rights (ECtHR), the EU itself is not (formally) bound by the
ECHR.1 This fact has long provoked a debate in political, judicial and academic circles. Thus,


Professor of European Law, Durham Law School, Durham University, UK; I am grateful to the participants to
the Durham European Law Institute workshop on Opinion 2/13 for a very stimulating discussion, to Dr Se-
Shauna Wheatle for providing me with information about the UK Government’s response to Opinion 2/13, and
to the anonymous reviewers for their comments. The usual disclaimer applies.
1
Article 52(3) of the Charter of Fundamental Rights of the European Union, [2012] OJ C326/391 (hereinafter
the ‘Charter’), provides that Charter rights which correspond to those guaranteed by the ECHR shall have the
same meaning and scope as those laid down in the Convention (for a list of those rights see Explanations to the
Charter, [2007] OJ C 303/17). Article 53 of the Charter provides that nothing in the Charter shall be interpreted
as restricting or adversely affecting the rights guaranteed inter alia in the ECHR. Following the ruling in Case C-

1
even though the Court of Justice did (at least theoretically) fill the gap arising from the lack
of any mention of fundamental rights in the original Treaties,2 it was widely felt that the EU
should be bound in its actions by limits equivalent to those that bind its Member States.3 The
debate thus proceeded along two, not mutually exclusive, lines: whether the EU should be
equipped with its own catalogue of rights to bring transparency and clarity in human rights
protection;4 and whether it should accede to the ECHR.5 Eventually, it was decided that both
solutions were necessary: 6 the Treaty of Lisbon therefore provides that the Charter of
Fundamental Rights has the same value as the Treaties; and Article 6(2) TEU provides not
only the competence, but a duty for the EU to accede to the ECHR.

It was assumed that those changes would have a positive impact on fundamental rights
protection in the EU, so that individuals would benefit from equivalent guarantees in relation
to acts of the Union institutions as they do in relation to their own Member State: a system of
‘domestic’ (that is EU) fundamental rights protection, and the residual ‘safety net’ protection
afforded by the European Court of Human Rights. And yet, fast forward to the end of 2014
and those assumptions might well be considered naïve at best, if not altogether misplaced: the
case law on fundamental rights after the entering into force of the Charter seems, by and
large, timid if not altogether regressive.7 Furthermore, the priorities of the Court post-Charter
have not changed: EU integration and the defence of the Court’s own hermeneutic monopoly
seem to be the guiding principles before and above fundamental rights protection. And

399/11 Melloni v. Ministerio Fiscal, EU:C:2013:107, Article 53 of the Charter cannot be seen as a minimum
guarantee.
2
See for the development of the Court’s jurisprudence on fundamental rights Case 29/69 Stauder,
EU:C:1969:57; Case 11/70 Internationale Handelsgesellschaft, EU:C:1970:114; Case 4/73 Nold,
EU:C:1974:51.
3
See Commission Memorandum on the Accession of the Communities to the European Convention on Human
Rights, Bulletin of the European Communities, Supplement 2/79 COM(1979) 210 final.
4
E.g. K. Lanaerts, ‘“Fundamental Rights to be included in a Community Catalogue’,” 16 ELRev (1991), p. 367,
advocating also the possibility for the Court of Justice to request a ruling on the interpretation of provisions of
the ECHR.
5
It is interesting to note that in the 1979 Commission Memorandum, the Commission thought accession easier
and more likely than a catalogue of rights. Of course accession / catalogue of fundamental rights dichotomy
does not exhaust the range of solutions prospected by scholars; see e.g. A.G. Toth, ‘The European Union and
Human Rights: the Way Forward’, 34 CMLRev (1997), p. 491, advocating the merging of the Council of Europe
and the EU; P. Alston and J.H.H. Weiler, ‘An “ever closer Union” in need of a Human Rights policy’, 9 EJIL
(1998), p. 658.
6
E. Paciotti, ‘La Carta: I contenuti e gli autori’, in A. Manzella et al., Riscrivere i diritti in Europa (Il Mulino,
2001), links the drive towards EU codification of fundamental rights also to the Balkan wars of the 1990s.
7
See e.g. the case law on the applicability of EU fundamental rights when an individual has exercised her
Treaty rights and note how, in many recent cases, the Court has not analysed the compatibility of national rules
falling within the Treaty with the Charter; e.g. Case C-86/12 Alokpa, EU:C:2013:645; Case C-456/12 O. and
B., EU:C:2014:135; Case C-457/12 S. and G., EU:C:2014:136.

2
unfortunately, Opinion 2/13,8 demonstrates the subsidiary interest of the Court in ensuring
that EU citizens are fully protected, even when it is the EU rather than a Member State that
acts. Thus, in that Opinion, the Court not only declared the draft agreement on the EU
accession to the ECHR incompatible with the Treaties, but it also made any future accession
very difficult if not altogether impossible.

This article draws on these themes: it starts by giving a brief account of why accession to the
ECHR has been deemed (almost universally, albeit clearly with the exception of the CJEU)
necessary (Section 2). It then briefly recalls the Draft Accession Agreement9 (Section 3), and
Opinion 2/13 (Section 4). In Section 5, the paper suggests a political solution to a legal
problem, urging the three institutions to commit themselves to respecting the ECHR and the
rulings of the European Court of Human Rights.

§2. THE NEED FOR EU ACCESSION TO THE ECHR

It could be argued that, given the fact that the Charter has been given primary law status,
accession to the ECHR is no longer necessary. However, accession of the EU to the ECHR
would serve to remedy three distinct and yet related problems: first of all, and most
obviously, it would remedy the lack of independent scrutiny over the acts of the EU
institutions, affording individuals a protection equivalent to that which they enjoy in the
domestic context. Secondly, it would provide clear jurisdiction to the ECtHR, hence putting
an end to the Bosphorus anomaly. Thirdly, it would send an important signal both internally
and externally. Internally, since it seems that fundamental rights protection (and the mutual
trust that is to be founded on this core value) is not always as present to the Member States’
minds as it might be hoped. Externally, as it would clarify to our international partners that
the EU does as it predicates: given the fact that fundamental rights are under constant threat,
the symbolic value of accepting external scrutiny is not to be underestimated. These three
issues will now be elaborated.

8
Opinion 2/13 of the Court of 18 December 2014, EU:C:2014:2454.
9
Council of Europe, Fifth Negotiation Meeting between the CDDH ad hoc negotiation group and the European
Commission on the Accession of the European Union to the European Convention on Human Rights, Final
Report to the CDDH, Strasbourg 3 April 2013, 47+1(2013)008rev2 (hereinafter the Draft Accession
Agreement). It is regrettable that the document has not been published on the Europa.eu website (which also
means it has not been translated in the EU official languages).

3
A. THE NECESSITY OF INDEPENDENT SCRUTINY

The idea behind the residual protection offered by the ECHR, through the jurisdiction of the
European Court of Human Rights, is that even in mature democracies there might be mishaps
in fundamental rights protection. The ECHR therefore aims to achieve two objectives: first, it
ensures that the minimum of rights set by the Convention standard is upheld, by correcting
the ‘mistake’ that occurred at national level. Secondly, the ECtHR ensures that inherent
cultural biases that might lead to inappropriately weighing conflicting interests are addressed.
The ECHR therefore introduces an element of pluralism in the assessment of state action that
is vital in order to ensure that majoritarian discourse does not impact excessively or unduly
on the rights of individuals. For those reasons, the ECHR is of pivotal importance not only to
‘younger’ democracies, but also to states that have a healthy record of fundamental rights
protection, that are equipped with a fully independent judicial system and often also a
constitutional court. It is clear that those considerations apply equally, and possibly more
urgently, to the EU, an imperfect democracy with an imperfect judicial system, whose
competences now extend to areas that are particularly fundamental rights sensitive (for
example, criminal, asylum, and immigration law, and sanctions against individuals).

It is therefore immaterial that the EU courts already protect fundamental rights: the ECHR is
not aimed at ensuring primary protection – that is the role of domestic courts (and of the EU
courts in the EU context). Rather, and this seems a nuance lost in the CJEU’s understanding
of the Convention system, the ECHR provides residual protection. Whilst it is certainly true
that, like any other judicial actor, one might disagree from time to time with its interpretation
of given rights, its function is unique and uniquely precious. In the EU context, some
examples might well serve to illustrate the benefits of external scrutiny. Take for instance
three distinct areas: the institutional structure of the EU; fundamental rights vis-à-vis
integration bias; and the application of EU fundamental rights to national law.

In relation to the institutional structure of the EU, it is sufficient to recall the role of the
Advocate General, which was questioned in the Kaba litigation. In the Kaba II case, the
national court raised the question whether the fact that parties could not respond to the
opinion of the Advocate General was compatible with Article 6 ECHR:10 the case law of the
European Court of Human Rights was in this respect not entirely clear as it had held that the

10
Case C-466/00 Kaba v. Secretary of State for the Home Department (Kaba II), EU:C:2003:127.

4
lack of rejoinder was compatible with Article 6(1) ECHR in some cases but not in others.11
The Advocate General delivered a very strong opinion rejecting the challenge, and given the
obvious bias, not an entirely persuasive one.12 The Court of Justice decided to reverse the
order of the questions and did not adjudicate on the compatibility of the Court’s own
structure with the ECHR, even though that question was of absolute relevance both for the
proceedings under consideration and for the judicial architecture of the European Union. It is
clear that in cases such as this, and given the basic principle pursuant to which nobody (not
even a court) should be adjudicating on its own affairs, external scrutiny would be beneficial
to the EU and its credibility.

In relation to the integration bias, that is the fact that fundamental rights might be sacrificed
on the altar of allegedly superior interests in pursuing and/or enhancing European integration,
the need for an external scrutiny is all the more necessary when the EU legislates in the areas
of criminal, asylum and immigration law. Here, take the reticence of the Court of Justice to
engage with the reservations expressed by national courts on the European Arrest Warrant’s
compatibility with fundamental rights;13 or its quasi-religious belief in the adequacy, from a
fundamental rights perspective, of all 28 national legal systems;14 or its variable case law on
the extent to which national authorities, including the courts, are bound by the Charter when
implementing EU law.15 For instance, when fundamental rights act as a proxy for furthering
integration, the Court seems quite eager to impose on national court an obligation to apply
EU fundamental rights on acts of domestic institutions: that was the case in Carpenter, where
a rather remote connection with the free movement of services was instrumental in imposing
EU fundamental rights on national authorities;16 or Åkerberg Fransson where a remote

11
See ECtHR, Vermeulen v. Belgium, Judgment of 20 February 1996, Application No. 19075/91, where the
ECtHR found that the fact that the parties could not reply to the submissions of the (Belgian) Procureur
Général’s opinion in proceedings before the Cour de Cassation infringed the right to adversarial proceedings
and thus Article 6 ECHR. Compare with ECtHR, Kress v. France, Judgment of 7 June 2001, Application No.
39594/98, on the French Commissaire du Gouvernement (whose role is similar to that of the Advocate General).
In this case the ECtHR found that fact that the parties are not informed in advance of the submissions of the
Commissaire du Gouvernement and that they cannot reply to those submission did not constitute a breach of
Article 6. The ECtHR stressed that i) it was open to the parties to ask the CG to indicate the general tenor of his
submissions; ii) that it was open to the parties to reply to the CG by means of a memorandum for the
deliberations (para 76). Consider that in the case of the AG’s opinion that is not possible.
12
Opinion of Advocate General Ruiz Jarabo Colomer in Case C-466/00 Kaba II, EU:C:2002:447; the Advocate
General engages in a strong critique of the ECtHR’s ruling in ECtHR, Kress v. France.
13
E.g. Case C-303/05 Advocaten voor de Wereld VZW v. Leden van de Ministerraad, EU:C:2007:261; Case C-
399/11 Melloni v. Ministerio Fiscal.
14
See e.g. Joined Cases C-411/10 and C-493/10 N.S. v. Secretary of State for the Home Department,
EU:C:2011:865; and see discussion about mutual trust in Ssection 4.(B.) below.
15
E.g. Case C-400/10 PPU McB, EU:C:2010:582; Joined Cases C-411/10 and C-493/10 N.S. v. Secretary of
State for the Home Department, EU:C:2011:865; and see also the discussion in Section 4.(B.) below.
16
Case C-60/00 Carpenter, EU:C:2002:434.

5
connection between the legislation under consideration and internal market law, was
sufficient to impose on the national court the application of EU fundamental rights.17 On the
other hand, when the application of EU fundamental rights would hinder the effective
functioning of the EU regime, such as in the case of Dublin II and Brussllels II Regulations,18
or the European Arrest Warrant,19 then the national executing court, even though is
‘implementing’ EU law, cannot apply EU fundamental rights.20

Finally, the expansion of the scope of EU fundamental rights to encompass a growing

number of areas of national law clearly reinforces the need for accession. It should be
recalled that pursuant to the case law of the CJEU, once a policy area is attracted within the
ambit of EU law, national courts might be unable to apply their domestic standard of
fundamental rights protection. This is the case even when the connection between EU law
and national law is remote, as was the case in Åkerberg Fransson,21 or triggered only by the
exercise of a free movement provision, such as in Schmidberger,22 Viking23 and Laval.24 Once
the Court of Justice decides that the matter falls within the scope of EU law, it gains the
hermeneutic monopoly over striking the balance between competing rights and interests.
This, in turn, means that individuals are no longer protected by their domestic (constitutional)
fundamental rights and that, lacking accession, they are also no longer protected by the
ECHR. Similarly, when the EU decides to legislate, and lacking implementing discretion, it
not only relocates the assessment of fundamental rights compliance from the national to the
European courts, but it also subtracts, at least in theory,25 that same assessment from the

17
Case C-617/10 Åkerberg Fransson, EU:C:2013:105.
18
Regulation 604/2013 establishing the criteria and mechanisms for determining the Member State responsible
for examining an asylum application lodged in one of the Member States by a third-country national
(recast), [2013] OJ L 180/31 (Dublin II Regulation – previously Regulation 343/2003 – as modified also to take
into account the N.S. ruling); Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning
jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of
parental responsibility, [2003] OJ L 338/1 (Brussels II Regulation).
19
Council Framework Decision 2002/584/JHA on the European Arrest Warrant and the surrender procedures
between Member States, [2002] OJ L 190/1, consolidated version 28 March 2009 (European Arrest Warrant).
20
See e.g. Case C-400/10 PPU McB, EU:C:2010:582 (although in that case the Court of Justice did assess
indirectly the compatibility of the national provision in question with fundamental rights).
21
Case C-617/10 Åkerberg Fransson, EU:C:2013:105.
22
Case C-112/00 Schmidberger, EU:C:2003:333.
23
Case C-438/05 International Transport Workers’ Federation and Finnish Seamen’s Union v. Viking Line ABP
and OÜ Viking Line Eesti, EU:C:2007:772.
24
Case C-341/05 Laval un Partneri Ltd v. Svenska Byggnadsarbetareförbundet et al, EU:C:2007:809.
Schmidberger, Viking and Laval can also be seen as cases displaying a rather string integration bias; on this
point see E. Spaventa, ‘Federalisation versus Centralisation: tensions in fundamental rights discourse in the EU’,
in M. Dougan and S. Currie, 50 Years of the European Treaties: Looking Back and Thinking Forward. (Hart
Publishing,. 2009), p. 343.
25
See the next section for a brief summary of the case law of the European Court of Human Rights in relation to
acts of the EU institutions.

6
scrutiny of the ECtHR.26 Given the depillarization of co-operation in criminal law matters,
this is even more worrying as it might result in a significant reduction of fundamental rights
protection for Union citizens (see, for example Melloni).27

B. THE BOSPHORUS ANOMALY

Another reason which militates in favour of accession is the need to provide a firmer, and
more certain, jurisdiction for the European Court of Human Rights in relation to EU acts.
Thus, although the EU is not yet party to the Convention, the ECtHR has refused to
relinquish all jurisdiction in relation to EU derived legislation.28 Whilst it is clear that -
without accession – the ECtHR cannot hold the EU responsible for a violation of the ECHR,
it has found that in some cases, it might hold the Member State who gave effect to the EU act
responsible for a violation of the ECHR. In particular, in the case of Matthews,29 the ECtHR
found that when the CJEU does not have jurisdiction to assess a potential violation of
fundamental rights, then the ECtHR will assert its jurisdiction (albeit in relation to the
contracting party/parties rather than the EU) and examine the claim. This case law applies to
complaints about the primary law of the EU and, probably, also to the Common Foreign and
Security Policy in those cases where the Court of Justice lacks jurisdiction.30

Whilst this is a welcome development, it should be noted that a finding of incompatibility

leaves the state against which the action was originally brought in a difficult position: as the
EU is not a party to the ECHR it is not bound by the ECtHR ruling, so unless the claimant

26
Moreover, sometimes one wonders whether the decision to act through the EU rather than national action is
not instrumental to avoiding fundamental rights guarantees. E.g. the system of EU terrorist lists, where the
Council opted for an instrument in the then 3rd pillar (Common Positions) that was excluded altogether from the
Court’s jurisdiction, see generally E. Spaventa, ‘Remembrance of Principles Lost: on Fundamental Rights, the
Third Pillar and the Scope of Union Law’, 25 Yearbook of European Law (2006), p. 153-176.
27
Case C-399/11 Melloni v. Ministerio Fiscal; N. De Boer, ‘Addressing rights divergences under the Charter:
Melloni’, 50 Common Market Law Review (2013), p. 1083.
28
It is interesting to note that Judge Schermers, who was involved in the decision M & Co v. Germany, Decision
of the European Commission of Human Rights, 9 February 1990 (1990) 64 ECmHRR 138 - in which the
Commission refused jurisdiction to scrutinize a national act implementing a competition law decision -, wrote
extra-judicially that the Commission’s caution in that case was also due to the fact that Opinion 2/94 was
pending, Opinion 2/94 on the Accession by the Community to the European Convention for the Protection of
Human Rights and Fundamental Freedoms, EU:C:1996:140. He also indicated that had the Commission already
known the outcome of Opinion 2/94, it might well have shown less deference; see H.G. Schermers, ‘The Human
Rights Opinion on the ECJ and its Constitutional Implications’, CELS Occasional Paper no. 1,
http://www.cels.law.cam.ac.uk/publications/occasional%20papers/Paper_1.pdf. It might then not be by
coincidence that following Opinion 2/94, the ECtHR started to assert – gradually - increasing jurisdiction over
EU derived acts.
29
ECtHR, Matthews v. UK, Judgment of 18 February 1999, Application No. 24833/94.
30
Although unfortunately the ECtHR is not always clear as to whether the EU courts have jurisdiction; see e.g.
ECtHR, Segi and others v. 15 States of the EU¸ Judgment of 16 and 23 May 2002, Application No. 6422/02 and
9916/02; and compare with Case T-338/02, Segi et al v. Council, EU:T:2004:171; and Case C-355/04 P Segi et
al v. Council, EU:C:2007:116.

7
had addressed its grievance against all of the EU Member States, only one Member State
would be bound by the ruling, even though it would not be in its power to unilaterally remedy
the breach.

In relation to other EU legislation, the ECtHR in Bosphorus31 has used a Solange-type

approach,32 so that whilst it shows deference to the EU by refraining to assert full jurisdiction
against Contracting Parties for the acts of the EU, on the basis that the latter offers equivalent
protection to the ECHR, it has also held that it is open to applicants to show that in a
particular case the protection of Convention rights was ‘manifestly deficient’. The Boshporus
compromise - which is more pervasive than the national equivalent, but less extensive than
the exercise of full jurisdiction would be - is just that: a compromise. The rights of
individuals are protected, but less so than they would be should the EU accede to the
Convention. The bar (the ‘manifestly deficient’ criterion) is higher than it would be normally
since the breach of Convention rights becomes a procedural requirement. As such, and
because otherwise the scrutiny over jurisdiction and the scrutiny on the substance of the case
would be identical, it is limited to cases in which the applicant can prove a prima facie
(significant) breach. Furthermore, also in this case, a finding of incompatibility is of limited
use, since a single Member State cannot unilaterally amend EU law.33

So far, the Bosphorus case law has not been relaxed. Yet, within those constraints, the
ECtHR has been willing to exercise its supervisory role: for instance, a piece of national
legislation reproducing word for word the provisions of a Union law instrument is not
subtracted from the scope of the Convention.34 Whenever the Member State is exercising a
discretion in implementing a piece of EU law, it is fully bound by the ECHR and subject to
its mechanisms.35 Finally, the ECtHR has also found that Article 6(1) ECHR imposes upon
EU Member States’ national courts of last instance a duty to provide reasons when rejecting a
request to make a preliminary reference pursuant to Article 267 TFEU to the CJEU.36 And

31
ECtHR, Bosphorus v. Ireland, Judgment of 30 June 2005, Application No. 45036/98.
32
German Constitutional Court, Wünsche Handelsgesellschaft (Solange II), BVerfGE 73, 339 2 BvR 197/83;
see also Italian Constitutional Court, Sentenza 7/3/64, no. 14 (in F. Sorrentino, Profi li Costituzionali
dell’Integrazione Comunitaria (2nd edition, Giappichelli Editore, 1996), p. 61 et seq.); and Societá Acciaierie
San Michele v. High Authority (27 December 1965, no. 98), [1967] Common Market Law Report 160.
33
This being said, one would hope that if a comparable situation would arise, the Court of Justice would in any
event take the opportunity to annul the relevant piece of EU legislation as incompatible with the Charter as per
Article 52(3) of the Charter.
34
ECtHR, Cantoni v. France, Judgment of 11 November 1996, Application No. 17862/91, para. 30.
35
Case ECtHR, M.S.S. v. Belgium and Greece, Judgment of 21 January 2011, Application No. 30696/09, para.
340.
36
E.g. ECtHR, Dhahbi v. Italy, Judgment of 8 April 2014, Application No. 17120/09.

8
that failure to refer a question for preliminary reference impacts on the presumption of
equivalence and therefore triggers the jurisdiction of the ECtHR also in relation to acts of
Member States implementing EU law where there was no discretion left to national
authorities (pure EU acts).37

C. THE BROADER CONTEXT: LEADING BY EXAMPLE (OR NOT?)

The third reason why accession to the ECHR (and the adoption of the Charter) is considered
necessary is to ensure some coherence between what the EU requires of acceding Member
States and international partners on the one hand, and its own behaviour, on the other. Thus,
starting from the mid-1990s, the scholarship has noted how the Copenhagen criteria, which
impose fundamental rights compliance as a condition for accession,38 as well as the increased
use of human rights conditionality clauses in international agreements between EU and third
countries,39 was at odds with the EU’s own behaviour in relation to fundamental rights. The
Charter, of course, goes a long way in addressing those objections, and yet the lack of
external scrutiny on the EU’s own fundamental rights record is of course, noted, not least
since the case law of the CJEU on fundamental rights protection is variable.40

The gap between what the EU requires from others and what it does itself would be, in itself,
a very powerful reason for accession. And yet, there is another reason for accession, and this
relates to the EU’s ambition to be a community of states which, first and foremost, is based
on the common values listed in Article 2 TEU, values which are all closely linked to the
respect of fundamental rights. It is this ‘common basis’ that allows for co-operation in human

37
ECtHR, Michaud v. France, Judgment of 6 December 2012, Application No. 12323/11, para. 115.
38
Presidency Conclusions Copenhagen European Council, (SN 180/1/93 REV 1),
http://www.consilium.europa.eu/ueDocs/cms_Data/docs/pressData/en/ec/72921.pdf.
39
See generally L. Bartels, Human Rights Conditionality in the EU’s International Agreements (OUP, 2005); L.
Bartels, ‘The Application of Human Rights conditionality in the EU’s bilateral Trade agreements and other trade
arrangements with third countries’, Report prepared at the request of the European Parliament’s Committee on
International Trade (2008), http://www.europarl.europa.eu/RegData/etudes/etudes/join/2008/406991/EXPO-
INTA_ET(2008)406991_EN.pdf.
40
Examples of the Court of Justice taking rights ‘seriously’ are for instance those relating to the freezing of
assets of assets of individuals and organisations suspected of having links with terrorist groups; e.g. Case C-
402/05 P Yassin Abdullah Kadi and Al Barakaat International Foundation v. Council of the European Union
and Commission of the European Communities, EU:C:2008:461; Case T-204/08 People’s Mojahedin
Organization of Iran v. Council of the European Union, EU:T:2008:550; other cases demonstrate a more
restrictive approach to fundamental rights; e.g. Case C-122/99 and C-125/99 D and Sweden v. Council,
EU:C:2001:304; and compare with the interpretation given by the ECtHR in ECtHR, Salgueiro da Silva Mouta
v. Portugal, Judgment of 21 December 1999, Application No. 33290/96; 40 Case C-540/03 Parliament v.
Council (family reunification directive), EU:C:2006:429; Case C-303/05 Advocaten voor de Wereld VZW v.
Leden van de Ministerraad..

9
rights sensitive fields, such as immigration and co-operation in criminal law. It is this
(alleged) common basis that is at the heart of the mutual trust (so dear to the Court) between
Member States in relation to judicial co-operation; and it is this common basis that is the
foundation for the European Arrest Warrant, and the Dublin II and Brussels II Regulations.
Furthermore, it is this ‘common basis’ that justifies Article 7 TEU. After all, if the EU is a
community of like-minded states insofar as fundamental rights protection is concerned, and if
it is the existence of these common values that justifies EU coordinating action in the judicial
sphere, then it is only right that Member States might face scrutiny over their fundamental
rights record.41 If this is so, if the EU demands fundamental rights compliance from its
Member States even beyond fields that are harmonized or affected by EU law, then it appears
inconsistent for the EU not to subject itself to external scrutiny. This is even more the case at
a moment when the post-war drive for fundamental rights protection might be losing steam.

The EU accession to the ECHR would have then remedied those problems, as well as sending
out a very important signal internally and internationally as to the centrality of fundamental
rights protection for the integration project.

§3. THE DRAFT ACCESSION AGREEMENT

The Accession Agreement had to address two main problems: first of all, how to reconcile
accession of a supranational body to a convention designed for states. In particular,42 and
given the complexities and peculiarities of the EU legal architecture, it needed to ensure that
(i) the competences of the EU would not be expanded through accession;43 (ii) the obligations
of the Member States would not change because of accession;44 and (iii) individuals would
not be caught in an impossible web of uncertainty in determining who was the body actually

41
This said, Article 7 TEU has never been used even if Member States have not always paid attention to the
ECHR (and EU) obligations; see e.g. European Parliament Resolution on the risks of violation, in the EU and
especially in Italy, of freedom of expression and information (Article 11(2) of the Charter of Fundamental
Rights) (2003/2237(INI)), (P5_TA(2004)0373), [2004] OJ C 104/1026.
42
The Council decision authorizing the negotiations for accession was at first classified; following a successful
challenge by Professor Besselink (Case T-331/11 Besselink v. Council, EU:T:2013:419) it was declassified, see
Draft Council Decision authorizing the Commission to negotiate the Accession Agreement of the European
Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms, 9698/10
DCL 1 REV1 (the negotiating directive).
43
Article 6(2) TEU; Article 2 Protocol 8 Relating to Article 6(2) of the Treaty on European Union on the
Accession of the Union to the European Convention on the Protection of Human Rights and Fundamental
Freedoms; para 1(a) negotiating directive.
44
Article 2 Protocol 8; para. 1(c) negotiating directive.

10
responsible for the alleged violation.45 Thus, as explained in the draft explanatory report to
the draft agreement,46 the EU position is unique in that the legal basis for an act and the
executor of that same act might be ascribable to different entities (EU/Member State and vice
versa).

Secondly, the Court of Justice made it reasonably clear that it would not tolerate being
deprived of the possibility of preliminary scrutiny over the compatibility with fundamental
rights of EU law.47 The Accession Agreement therefore needed to take this into account since
the Court of Justice de facto had an indirect veto on the agreement, as it is for the Court to
declare the compatibility of the latter with the Treaties (either in a preliminary opinion; or in
direct or indirect challenges to the validity of the agreement).

The Draft Accession Agreement attempted to address these concerns through a carefully
thought (if not perfect) mechanism. It therefore provided the following:

 Accession would impose obligations only in relation to acts, measures or omission of the
EU institutions, bodies, offices or agencies, and of persons acting on their behalf. It would
not require the EU to perform an act for which it has no competence (Article 1(3)).

 Acts of the Member States should, for the purposes of the Convention, always be
attributed to the Member States, even when adopted in the implementation of an EU act
(or Treaty provision). In cases where the EU was a co-respondent, the EU could also be
held responsible for a violation of the Convention (Article 1(4)).

 The EU could join as a co-respondent in proceedings directed against one or more of its
Member States when it ‘appear[ed]’ that such allegation called into question the
compatibility of the Convention of a provision of EU law (Article 3(2)).48

45
Article 1(b) Protocol 8; para. 10 negotiating directive.
46
Appendix V, Draft Accession Agreement (see footnote 9).
47
See joint press release by Presidents Costa and Skouris, 17 January 2011,
http://www.echr.coe.int/Documents/UE_Communication_Costa_Skouris_ENG.pdf.
48
A procedure reminiscent of the co-respondent mechanism was already anticipated in 2002, see Council of
Europe, Study of technical and legal issues of a possible EC/EU Accession to the European Convention on
Human Rights, Report adopted by the Steering Committee for Human Rights (CDDH) at its 53rd meeting (25-28
June 2002), DG-II(2002)006[CDDH(2002)010 Addendum 2], especially para. 57 and et seq.

11
 Conversely, in cases addressed to the EU, Member States could join as co-respondent if
the case concerned the compatibility with the Convention of a Treaty provision, or a
provision of equal status to the Treaties. (Article 3(3))

 The EU/Member States could become co-respondent either by invitation or by a decision

of the ECtHR, both taken after seeking the views of the parties to the proceedings. The
ECtHR involvement would be limited to assess whether it was ‘plausible’ that the
conditions for EU/Member States to become co-respondent were met (Article 3(4)).

 In those cases in which the EU was a co-respondent and the CJEU had not yet had the
chance to examine the compatibility of the EU provision in question with the rights
defined in the Convention, then ‘sufficient time’ would be afforded to the Court of Justice
to make such an assessment (Article 3(6)).

§4. OPINION 2/13

The Court of Justice delivered a negative opinion in relation to the compatibility of the Draft
Accession Agreement with the Treaties and Protocol 8.49 The Opinion can be usefully
divided in three different parts: (i) the preservation of the Melloni doctrine; (ii) the defence of
EU exceptionalism; and (iii) institutional/procedural issues.50 All in all, Opinion 2/13 is
disappointing for two different reasons. It is obviously disappointing because of its
significance for the protection of human rights in Europe. But it is also disappointing because
49
There have been some excellent analysis and suggestions following Opinion 2/13; see e.g. S. Peers, ‘The
CJEU and the EU’s accession to the ECHR: a clear and present danger to human rights protection’, EU Law
Analysis (2014), http://eulawanalysis.blogspot.co.uk/2014/12/the-cjeu-and-eus-accession-to-echr.htmlection; L.
Besselink, ‘Acceding to the ECHR notwithstanding the Court of Justice Opinion 2/13’, Verfassungsblog (2014),
http://www.verfassungsblog.de/en/acceding-echr-notwithstanding-court-justice-opinion-213/; S. Douglas-Scott,
‘Opinion 2/13 on EU accession to the ECHR: a Christmas bombshell from the European Court of Justice’, UK
Constitutional Law Association (2014), http://ukconstitutionallaw.org/2014/12/24/sionaidh-douglas-scott-
opinion-213-on-eu-accession-to-the-echr-a-christmas-bombshell-from-the-european-court-of-justice/; D.
Halberstam, ‘“It’s the Autonomy, Stupid!” A Modest Defense of Opinion 2/13 on the Accession of the EU to
the ECHR, and a Way Forward’, available on www.ssrn.com; P. Gragl, ‘The Reasonableness of Jealousy:
Opinion 2/13 and EU Accession to the ECHR’, available on www.ssrn.com.
50
The Court divided the issues in two categories: (i) ‘whether the agreement envisaged is liable to adversely
affect the specific characteristics of EU law (…) and (…) the autonomy of EU law in the interpretation and
application of fundamental rights, as recognized by EU law and notably by the Charter’ (emphasis added); and
(ii) whether ‘the institutional and procedural machinery’ envisaged in the agreement ensures that the ‘conditions
in the Treaties for the EU’s accession to the ECHR are complied with’ (Opinion 2/13, para. 179). The first and
second of our categories fall within the Court’s first category; our third category corresponds to the Court’s
second category.

12
it shows the Court’s profound distrust of both national courts (and their compliance with the
principle of loyal cooperation) and of the European Court of Human Rights. This is
notwithstanding the fact that, as mentioned above, the latter’s case law on the link between
preliminary references and Article 6(1) of the Convention has further strengthened the
obligation of national courts to request a preliminary ruling, or adequately motivate a refusal
to do so.

A. PRESERVING THE MELLONI DOCTRINE

After having recalled the fact that accession would bind the Member States as well as the
EU,51 the Court proceeded to take issue with the ‘external control’ provided by the
Convention. In particular, it stated that decision-making powers by the ECtHR must not have
the effect of binding the EU to a particular ‘interpretation of EU law’. Thus, the Court held
that ‘it should not be possible for the ECtHR to call into question the Court’s findings in
relation to the scope ratione materiae of EU law, for the purposes, in particular, of
determining whether a Member State is bound by fundamental rights of the EU’.52

The Court then stated that Article 53 of the Charter (as interpreted in Melloni) means that
Member States, when acting within the scope of Union law, might not be able to apply higher
standards than those provided for by the Charter as interpreted by the Court.53 It then argued
that since Article 53 ECHR provides that Contracting Parties can always provide a higher
standard of protection than that guaranteed by the Convention, those two provisions need to
be coordinated. That is to ensure that the ‘level of protection provided for by the Charter and
the primacy, unity and effectiveness of EU law are not compromised’.54

This objection reflects the anxiety of the Court as to the acceptance of the Melloni doctrine by
national judiciaries. Yet, the Court’s reasoning is not particularly persuasive: the Member

51
Albeit only in fields in which the Member States are implementing EU Law, something that the Court omits.
See Protocol 8 Article 2, which provides that nothing in the Accession Agreement shall affect ‘the situation of
Member States in relation to the Convention’. Article 1(3) of the Accession Agreement provides that ‘Accession
to the Convention (…) shall impose on the European Union obligations with regard only to acts, measures or
omissions of its institutions, bodies, offices or agencies, or of persons acting on their behalf’ (emphasis added).
Article 1(4) of the Accession Agreement provides that an act of a Member State, for the purposes of the
Convention, must be attributed to that State even when the State is implementing EU law.
52
Opinion 2/13, para. 186.
53
Member States would never be able to fall below the protection provided for in the Charter in fields occupied
by Union law; see pre-Charter, e.g. Case C-60/00 Carpenter, ECLI:EU:C:2002:434.
54
Opinion 2/13, para. 189.

13
States might, in certain instances, be under an EU law obligation not to apply standards above
those provided for by the Charter; the Charter cannot fall below the ECHR standards but it
can provide that same level of protection. Whilst it is true that the Member States would be
able to provide more generous protection as a matter of Convention law, they would not be
able to do so as a matter of EU (primary) law. Article 53 ECHR provides discretion on
Contracting Parties (if they wish they may provide a more generous protection). It does not
provide an obligation. There is therefore no possibility of clash between the two Articles.

The same concern towards ensuring that in matters falling within the scope of EU law
national courts do not get ‘confused’ over which standard of protection is applicable is visible
in the Court’s objection to Protocol 16 ECHR which allows the national highest courts and
tribunals to request an advisory opinion from the ECtHR. In the eyes of the Court, and even
though the Protocol was not part of the Accession Agreement, the possibility to request an
advisory opinion might interfere with the national courts’ duties to request a preliminary
reference.55 The Court fears that in cases falling within the scope of EU law, where the
ECHR and the Charter would apply concurrently, national courts might be tempted to require
an opinion from the ECtHR rather than a preliminary ruling from the Court of Justice.

The objection to Protocol 16 however seems moot if one considers that the power of the
national highest court to request an advisory ruling is a discretion which therefore should not,
pursuant to the principle of loyal cooperation and Article 267 TFEU, be exercised at the
expense of the CJEU’s jurisdiction.56 Furthermore, realistically, it is not clear what interest
would a national highest court have in requesting an advisory opinion from the ECtHR, rather
than a preliminary ruling from the Court of Justice. The latter will presumably continue to be
speedier; it provides for the possibility to request an interpretation of the EU provisions in
question beyond their compatibility with fundamental rights; and it might yield to a more
satisfactory result given that the Court of Justice is, and would continue to be also after
accession, the only court which might declare an act of the EU institutions invalid.

B. EU EXCEPTIONALISM

55
This of course raises the question as to whether the duty of loyal co-operation might not impose on Member
States the obligation of non-ratification of the Protocol in its current form.
56
In fact a deep distrust of national courts is also apparent in the mechanism (demanded by the Court) through
which the European Court of Human Rights would give sufficient time to the CJEU to decide on compatibility
of the EU act under consideration with the Convention in cases in which it had not done so previously. On this
issue see E. Spaventa, ‘Fundamental Rights in the European Union’, in C. Barnard and S. Peers, EU Law (OUP,
2014), section 5.2.2.

14
Secondly, and perhaps more worryingly, the Court demands that any draft agreement should
provide for some sort of EU exceptionalism, i.e. some special treatment of the EU.57 Here the
Court is concerned about legislation adopted in the context of the Area of Freedom, Security
and Justice; and its own lack of jurisdiction in the Common Foreign and Security Policy.

In relation to the Area of Freedom, Security and Justice, the Court reasons as follows: the EU
is based on mutual trust between Member States; in the Area of Freedom Security and Justice
this means that Member States (save in exceptional cases) must consider that their
counterparties respect fundamental rights as recognized by EU law. As a result, Member
States may be required not only to presume compliance, but also to avoid checking in specific
cases whether fundamental rights guaranteed by the EU have actually been observed. 58 The
Court then continued:

The approach adopted in the agreement envisaged, which is to treat the EU as a State and to
give it a role identical in every respect to that of any other Contracting Party, specifically
disregards the intrinsic nature of the EU and, in particular, it fails to take into consideration
the fact that the Member States have, by reason of their membership of the EU, accepted that
relations between them as regards the matters covered by the transfer of powers from the
Member States to the EU are governed by EU law to the exclusion, if EU law so requires, of
any other law.59

Insofar as accession would require Member States to check that another Member State
observes fundamental rights even when ‘EU law imposes an obligation of mutual trust’, then
‘accession is liable to upset the underlying balance of the EU and undermine the autonomy of
EU law’.60

57
These demands are even more worrying given the fact that in some Member States, notably the UK, the
ECHR system is under considerable attack. In particular, see The Conservatives, ‘Protecting Human Rights in
the UK’, The Conservatives’ Proposals for Changing Britain’s Human Rights Laws (2014),
https://www.conservatives.com/~/media/Files/Downloadable%20Files/HUMAN_RIGHTS.pdf, in which the
British Conservative party challenges the need for the external scrutiny performed by the European Court of
Human Rights. In their view, following the repeal of the Human Rights Act 1998, the European Court of Human
Rights would become an ‘advisory body’; fundamental rights would only be able to be used in the more serious
matters (a threshold mechanism) and should those changes not be acceptable to the Council of Europe, then the
UK would ‘be left with no alternatives than to withdraw from the European Convention on Human Rights’. In
many ways, the Conservative Party’s objections are not so different from the approach of the CJEU, and so not
surprisingly Mr Chris Grayling, the current Justice Secretary, has welcomed Opinion 2/13,
http://www.publications.parliament.uk/pa/cm201415/cmselect/cmeuleg/219-xxix/21909.htm.
58
Opinion 2/13, para. 192.
59
Opinion 2/13, para. 193, (emphasis added).
60
Opinion 2/13, para. 194 (emphasis added).

15
The reason for the Court’s closure can be easily explained having regard to the peculiarities
of some of the legislation adopted in the Area of Freedom, Security and Justice. In particular,
instruments like the European Arrest Warrant, the Dublin II Regulation and the Brussels II
Regulation, aim to coordinate the legal systems of the Member States in order to ensure a
speedier resolution of claims which have some cross-border connection. In relation to those
instruments, the CJEU has carved an exception to its case law on fundamental rights
protection: if EU fundamental rights must always be applied to national acts implementing or
giving effect to EU law, that is not the case in relation to coordinating instruments. Rather,
national courts, in order to preserve the effectiveness of EU law might be under a duty not to
perform a fundamental rights scrutiny,61 or to limit such scrutiny to the most extreme of
violations.62

This approach is justified, in the eyes of the Court, by the ‘high degree of confidence which
should exist between the Member States’.63 Thus, the national court that is executing a
European Arrest Warrant must presume that fundamental rights will be respected by the
issuing authorities; the same applies to a national court which is enforcing a ruling under the
Brussels II Regulation,64 and, more controversially, in relation to decisions returning asylum
seekers to their first port of entry. It is in relation to the latter category - asylum seekers - that
the presumption of fundamental rights compliance has come under strain through the
intervention of the ECtHR.

In particular, in the case of M.S.S.,65 the ECtHR found that since there is a reserve of
sovereignty whereby a Member State can always decide to assess an asylum request, even
when it is not a designated authority under the Regulation, the Convention applies to the
exercise of that discretion. In other words, whenever a Member State returns an asylum
seeker to another Member State under the Dublin II system, it has to consider whether the
asylum seekers’ Convention rights would be breached. Whilst the European Court of Human
Rights has accepted that Member States might be satisfied that the responsible Member State
‘apparently’ complies with the Convention,66 ‘the States must make sure that the

61
See e.g. Case C-396/11 Radu, EU:C:2013:39; Case C-400/10 PPU McB, EU:C:2010:582.
62
Joined Cases C-411/10 and C-493/10 N.S. v. Secretary of State for the Home Department, EU:C:2011:865.
63
Case C-399/11 Melloni, para. 37 (emphasis added).
64
And for the ECtHR acceptance of the Brussels II system, see ECtHR, Povse v. Austria, Judgment of 18 June
2013, Application No. 3890/11.
65
ECtHR, M.S.S. v. Belgium and Greece.
66
ECtHR, T.I. v. United Kingdom, Judgment of 7 March 2000, Application No. 43844/98; ECtHR, K.R.S. v. the
United Kingdom, Judgment of 2 December 2008, Application No. 32733/08.

16
intermediary country’s asylum procedure affords sufficient guarantees to avoid an asylum-
seeker being removed, directly or indirectly, to his country of origin without any evaluation
of the risks he faces from the standpoint of Article 3 of the Convention’.67

In the ruling in Tarakhel,68 the ECtHR further extended the Convention obligations of the
Member States when applying the Dublin II Regulation. In that case, the Court found that in a
case relating to a family with six children, Switzerland was under a Convention obligation to
seek assurances from Italy (the port of first entry) that the family would be kept together and
accommodated in a manner suitable to the age of the children.

The Court of Justice has given a narrow interpretation of the M.S.S. obligation to ensure that
Convention rights would not be breached by the Member State responsible to assess the
asylum application. In the N.S. ruling, after having reiterated that the entire point of the
Dublin II system is to ensure a speedy resolution of asylum claims (and to avoid forum
shopping), the CJEU limited the obligation of Member States to assert jurisdiction over
asylum claims of individuals who could otherwise be returned to another Member State to
circumstances in which:

there are substantial grounds for believing that there are systemic flaws in the asylum
procedure and reception conditions for asylum applicants in the Member State responsible,
resulting in inhuman or degrading treatment, within the meaning of Article 4 of the Charter,
69
of asylum seekers transferred to the territory of that Member State.

It is in this light that the Court’s demand for a special arrangement for rules adopted within
the Area of Freedom Security and Justice should be understood: in the Area of Freedom,
Security and Justice the Court wants to avoid the full application of the Convention since, if
the ECHR were to be applied in full, then the Member State where the individual is located
would have to assure itself that rendition to the State having jurisdiction under the Regulation
would not breach the claimants’ Convention rights. Furthermore, it appears that the Court, via
its demands, is also attempting to limit the existing case law of the ECtHR. Leaving aside

67
ECtHR, M.S.S. v Belgium and Greece, para. 342.
68
ECtHR, Tarakhel v. Switzerland, Judgment of 4 November 2014, Application No. 29217/12; see also ECtHR,
Sharifi and Others v. Italy and Greece, Judgment of 21 October 2014, Application No. 16643/09, finding that
the immediate deportation to Greece of asylum seekers who had entered Italy illegally from Greece breached the
Convention.
69
Joined Cases C-411/10 and C-493/10 N.S. v. Secretary of State for the Home Department, para. 86 (emphasis
added). See also Case C-394/12 Shamso Abdullahi v. Bundesasylamt, EU:C:2013:813, for a very narrow
interpretation of the state’s obligations under the Charter and the Convention. The new Dublin II Regulation
reproduces the wording of the Court of Justice, hence providing less generous protection than that demanded by
the ECtHR in the M.S.S. ruling; see Regulation 604/2013, Article 3(2).

17
considerations as to the wisdom of interfering with the Court of Human Rights interpretation
of the Member States obligation pursuant to the ECHR, one might well reflect upon whether
the ‘mutual trust’ upon which the Court has founded its ‘hands-off’ approach in its case law
can really be relied upon in order to justify rules which might have a significant impact on the
rights of individuals, as protected by the Charter as well as the Convention.

In this respect, the presumption of minimum fundamental rights compliance appears to be

based more on legal fiction than on facts:70 just to name a few, take the situation in Bulgarian
prisons;71 the situation in Hungary in relation to freedom of expression and the independence
of the judiciary;72 the mistreatment of the Roma minorities in many of the Member States;73
the persistent violation of Article 6(1) ECHR by Italy, due to the excessive length of
proceedings;74 the treatment of asylum seekers, especially in Mediterranean countries where
the influx is greater.75

In any event, the presumption of fundamental rights compliance could be justified only
insofar as the EU was willing (or able) to compel its Member States to respect fundamental
70
See generally e.g. Human Rights Watch, ‘Annual Report 2015’, Website of Human Rights Watch (2015),
http://www.hrw.org/sites/default/files/wr2015_web.pdf.
71
Council of Europe, ‘Report to the Bulgarian Government on the visit to Bulgaria carried out by the European
Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 24
March To 3 April 2014’, Website of the Council of Europe (2014), http://www.cpt.coe.int/documents/bgr/2015-
01-29-eng.htm.
72
Council of Europe, Report by Nils Muižnieks, Council of Europe Commissioner for Human Rights, following
his visit to Hungary, from 1 to 4 July 2014, CommDH(2014)21,
https://wcd.coe.int/ViewDoc.jsp?Ref=CommDH(2014)21&Language=lanEnglish&Ver=original&BackColorInt
ernet=DBDCF2&BackColorIntranet=FDC864&BackColorLogged=FDC864 ); see also Human Rights Watch,
‘Annual Report 2015’, Website of Human Rights Watch (2015); ,
http://www.hrw.org/sites/default/files/wr2015_web.pdf; European Parliament resolution of 10 March 2011 on
media law in Hungary, available at:
http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+TA+P7-TA-2011-
0094+0+DOC+XML+V0//EN; Resolution of 5 July 2011 on the Revised Hungarian Constitution, available at :
http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+TA+P7-TA-2011-
0315+0+DOC+XML+V0//EN. The Commission also brought two cases to address some of the problems arising
from the Hungarian reforms; Case C-286/12 Commission v Hungary, EU:C:2012:687, on the mandatory
retirement of judges; and Case C-288/12 Commission v Hungary, EU:C:2014:237 on the national supervisory
authority for data protection; in both cases the Court found that Hungary had failed to fulfill its obligations.
73
See generally, the website of the European Roma Rights Centre, http://www.errc.org/; and in particular the
report on forced expulsions perpetrated by France: ERRC, ‘Census: Forced evictions of migrant Roma in
France’, Website of the European Roma Rights Centre (2014), http://www.errc.org/article/violent-unfair-
unlawful-and-shameful-france-evicted-close-to-3-romani-settlements-per-week-in-2014/4351; see European
Union Agency for Fundamental Rights, ‘Opinion 1/2013 on the situation of equality in the European Union 10
years on from the initial implementation of the Equality directives’, Website of the European Union Agency for
Fundamental Rights (2013), http://fra.europa.eu/sites/default/files/fra-2013-opinion-eu-equality-
directives_en.pdf.
74
See e.g. ECtHR, Cocchiarella v. Italy, Judgment of 29 March 2006, Application No. 64886/01, especially
para. 65 and et seq.
75
See the abolition of the Mare Nostrum operation by the Italian Government. On 11 February 2015, more than
300 people died trying to reach the Italian shores and the high number of deaths has been directly linked to the
abolition of the patrol system.

18
rights. And yet, this is not the case for two reasons: first of all, the Council has never used its
powers under Article 7 TEU to reprimand or sanction a Member State for a ‘clear risk of a
serious breach of fundamental rights’ or for the ‘existence of a serious and persistent breach’
of fundamental rights. This has been the case even though some countries have given rise to
very serious general (for example, Hungary) or sectorial (for example, Greece, Italy, France)
concerns as to fundamental rights compliance. Thus, Article 7 TEU, due to its inherently
political nature, appears not apt to guarantee that basic uniformity that should be the
foundation upon which mutual trust can be built.

In relation to the potential to compel Member States to respect fundamental rights, it should
be noted that EU fundamental rights apply only when Member States are implementing EU
law, therefore rendering an action for infringement difficult (albeit not impossible).
Moreover, and even though there are sectorial pieces of legislation which touch upon human
rights (such as the non-discrimination directives),76 infringement proceedings for quite
blatant violation of discrimination rules in relation to the Roma population have been slow to
come.77

Thus, if there is no effective way to monitor fundamental rights compliance in the EU, why
should mutual trust be elevated to a ‘supreme’ interest/principle in human rights-sensitive
areas? This is not the internal market, where it is reasonable to expect that since Member
States have little interest in putting their citizens at risk, they might be trusted to do a
reasonable job at regulating the market.78 In the field of criminal law, and even more so in the
fields of asylum and immigration, measures are, usually, adopted against the weakest and
most disenfranchised individuals: the presumption of fundamental rights compliance
therefore seems naïve at best.

76
Directive 2000/43 implementing the principle of equal treatment between persons irrespective of racial or
ethnic origin, [2000] OJ L 180/22; Directive 2000/78 establishing a general framework for equal treatment in
employment and occupation, [2000] OJ L 303/16.
77
See European Union Agency for Fundamental Rights, ‘Opinion 1/2013 on the situation of equality in the
European Union 10 years on from the initial implementation of the Equality directives’, Website of the
European Union Agency for Fundamental Rights (2013), http://fra.europa.eu/sites/default/files/fra-2013-
opinion-eu-equality-directives_en.pdf. The BBC reported on 28 October 2014 of infringement proceedings
being brought against the Czech Republic for segregated schooling of Roma children, R. Cameron, ‘Roma
complain of Czech school segregation’, Website of the BBC (2014), http://www.bbc.com/news/world-europe-
29742282.. Yet, the website of the Commission fails to include any mention of this action, even in its portal
dedicated to the Roma situation.
78
Even in internal market cases and lacking harmonization, Member States are able to rely on Treaty
derogations and mandatory requirements to protect the interest of their consumers.

19
For these reasons the ‘mutual trust’ objection is particularly worrying: first, because it seeks
to remove the basic net of fundamental rights protection provided for in the ECHR, where it
is needed the most. Secondly, because it is difficult to accommodate in a new Accession
Agreement (on this point see further below).

The same (insurmountable) exceptionalism is present in relation to the Court’s objection to

the jurisdiction of the ECtHR over Common Foreign and Security Policy matters when the
Court of Justice does not have any. Here, Advocate General Kokott examined the issue from
a judicial protection perspective: in particular, she relied on the fact that even when the Court
of Justice does not possess jurisdiction, the national courts act as EU courts in order to ensure
effective judicial protection. Therefore, a Common Foreign and Security Policy issue would
have been considered by national courts, which are part of the EU judicial architecture,
before reaching the ECtHR. The Court of Justice, however, does not share this view of an
integrated judicial system in the EU, where the responsibilities for the protection of
individuals are shared between national and European courts.79 Rather, it signals that the
Accession Agreement would only be acceptable insofar as it excluded the jurisdiction of the
ECtHR on the Common Foreign and Security Policy (which would be inconsistent with
Article 57(1) ECHR)80 or if the Treaties were amended also to confer jurisdiction over the
CFSP on the CJEU, which is difficult given that some Member States (notably the UK and
France) are very unlikely to agree to such a Treaty amendment.

Furthermore, the Court’s objections in relation to the CFSP appear to be rather pointless
given that the ECtHR has already asserted jurisdiction when the Court of Justice has none.81
More importantly, the Court is indicating that it would rather accept that an individual were
entirely devoid of judicial protection than have another body looking at compliance with an
international convention.82

79
Which is ironic, given the Court’s stance in relation to judicial review proceedings that the Plaumann test
does not leave a gap in protection since individuals can challenge the validity of EU law in front of national
courts; see e.g. Case C-50/00 P UPA, EU:C:2002:462.
80
Article 57(1) of the Convention provides that Contracting Parties might make reservations to the Convention.
However it also provides that reservations of a general character are not allowed.
81
ECtHR, Matthews v. UK, Judgment of 18 February 1999, Application No. 24833/94; see Ssection 2.(B).
above.
82
Opinion 2/13, para. 257. This issue is analysed by the Court at the end of the ruling in relation to the
institutional/procedural issues. However, in the eyes of the author this also fits well, if not better, in the EU
exceptionalism category.

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C. INSTITUTIONAL AND PROCEDURAL ISSUES

Lastly, the Court objected to several of the institutional arrangements put in place by the
Draft Accession Agreement. For our purposes, those are less relevant since the Court’s
objections could be more easily accommodated in a new Accession Agreement. For the sake
of completeness, however, the Court’s main criticisms are illustrated. The Court objected to:

 The fact that no mechanism had been provided in the agreement to ensure that
disputes between Member States or between the EU and Member States in
relation to violation of the ECHR in fields covered by EU law would not be
brought in front of the ECtHR.

 The co-respondent mechanism, insofar as the ECtHR would be able to assess the
plausibility of the request by the EU or a Member State to join proceedings, since
that would, in the eyes of the CJEU, require an interpretation by the ECtHR of
EU law. In addition, the Court objected to the joint responsibility mechanism,
whereby a Member State and the EU are to be held jointly responsible by the
ECtHR. In the view of the Court, this might affect the guarantee in Article 2
Protocol 8 that accession should not affect the Member State’s reservations made
pursuant to Article 57 ECHR. This is the case even though the ECtHR
(presumably to address exactly those concerns) might decide that only one of the
co-respondents is to be held responsible. This provision is not only not considered
sufficient to avoid an ECHR ‘creep’ in the Member States’ reservations under
Article 57 ECHR, but it is found problematic per se, since it implies a decision on
the apportionment of responsibility between Member States and EU that would
involve a decision as to the division of powers between the EU and Member
States.

 The mechanism for the involvement of the CJEU. Here, the Court objected to two
issues: first of all, the decision on the need for the involvement of the CJEU
should rest with an EU institution and not with the ECtHR. Secondly, the
agreement (or the interpretation thereof provided in the draft explanatory report)
seems to exclude the possibility of consulting the CJEU on matters of
interpretation of secondary legislation, therefore allegedly breaching the principle

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 that the Court of Justice has exclusive jurisdiction over the interpretation of EU
law.

§5. THE FUTURE OF FUNDAMENTAL RIGHTS PROTECTION WITHOUT

RATIFICATION OF THE ECHR

It is interesting to note that most of the Court’s objections relate to jurisdiction that the
European Court of Human Rights already exercises. Thus, and as recalled above, the ECtHR
already imposed some obligations on the exercise of discretion by the Member States in cases
involving asylum seekers.83 It has also already been clarified that the presumption of
equivalent protection does not apply at all when the Court of Justice does not have
jurisdiction, so that acts adopted within the context of the Common Foreign and Security
Policy can presumably be attacked in front of the ECtHR.84 Furthermore, the ECtHR has
made it clear that the refusal to refer a case to the CJEU must be adequately reasoned or else
there would be not only a breach of Article 6(1) ECHR but also a rebuttal of the presumption
of equivalent protection.

It is to be hoped then that, pending the resolution of the stalemate created by Opinion 2/13,
the European Court of Human Rights will be willing to protect fully the rights of those
subject to EU rules, and, indeed, there are already indications that this might be the path that
will be taken. Thus, Dean Spiellmann, the President of the ECtHR, commenting on Opinion
2/13 made his disappointment at the ruling clear, and indicated that the ECtHR will step in to
guarantee the protection of fundamental rights for EU citizens. He stated:

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.
Our Court will thus continue to assess whether State acts, whatever their origin, are compliant
with the Convention, while the States are and will remain responsible for fulfilling their
Convention obligations.

83
See Section 4(.B). above; ECtHR, M.S.S. v Belgium and Greece, para. 342. ECtHR, Tarakhel v. Switzerland,
Judgment of 4 November 2014, Application No. 29217/12; see also ECtHR, Sharifi and Others v. Italy and
Greece, Judgment of 21 October 2014, Application No. 16643/09.
84
See Case C-50/00 P UPAfootnote 79 above.

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 The essential thing, in the end, is not to have a hierarchical conception of systems that would
be in conflict with each other. No, the key is to ensure that the guarantee of fundamental
rights is coherent throughout Europe.
For, let us not forget, if there were to be no external scrutiny, the victims would first and
foremost be the citizens of the Union.85

In this respect, it should be noted that the Bosphorus doctrine is sufficiently flexible to allow
for meaningful protection in pure EU law cases, i.e.that is in those cases where individuals
are challenging acts of Member States adopted in order to implement a EU act (with no
discretion left to the Member State), even without disposing of the doctrine of equivalent
protection. After all, it would be sufficient for the European Court of Human Rights to give a
slightly broader interpretation of what constitutes a manifest breach of the Convention.

As for the EU, the latter’s political institutions (and its Member States) could decide to make
a clear and unambiguous commitment to fundamental rights, without entering in a direct
collision course with the CJEU.86 It might be recalled that in 1977 the Commission, the
Council and the European Parliament issued a joint declaration to signal their acceptance of
the Court’s case law on fundamental rights,87 and their commitment to respect fundamental
rights when acting at (then) EEC level. Similarly, the Charter of Fundamental Rights was
proclaimed by the three institutions long before it acquired primary law status. The three
political institutions could therefore issue a joint declaration restating their commitment to
fundamental rights, and clarifying that they would consider a finding by the European Court
of Human Rights of incompatibility between an act of the EU institutions and the Convention
as binding; and they would act immediately to repeal and/or amend any offending instrument
accordingly. Furthermore, a declaration of all Member States could undertake to do the same
in relation to a potential conflict between a provision of primary law and the Convention.
This would send a very important signal to our international partners as to the EU
85
ECtHR, ‘President Dean Spielmann, Solemn hearing for the opening of the judicial year of the European
Court of Human Rights, Opening Speech, 30 January 2015’, HUDOC (2015),
http://www.echr.coe.int/Documents/Speech_20150130_Solemn_Hearing_2015_ENG.pdf, p. 5.
86
L. Besselink, ‘Acceding to the ECHR notwithstanding Opinion 2/13’, Verfassungsblog (2014),
http://www.verfassungsblog.de/en/acceding-echr-notwithstanding-court-justice-opinion-213/, has suggested that
the EU should adopt a ‘Notwithstanding Protocol’, to allow it to accede to the Convention despite (or in spite)
of Opinion 2/13. Such a Protocol would read: ‘The Union shall accede to the European Convention for the
Protection of Human Rights and Fundamental Freedoms, notwithstanding Article 6(2) Treaty on European
Union, Protocol (No 8) relating to Article 6(2) of the Treaty on European Union and Opinion 2/13 of the Court
of Justice of 18 December 2014’. I am not entirely persuaded that even if feasible this solution would be wise:
an open conflict between the judicial and the executive branches is always best avoided.
87
Joint Declaration of the European Parliament, the Council and the Commission Concerning the Protection of
Fundamental Rights and the European Convention for the Protection of Human Rights and Fundamental
Freedoms, [1977] OJ C 103/1.

23
commitment to fundamental rights protection. Even if for the time being, the EU is not in a
position to formally accede to the ECHR, nothing prevents it from deciding that it would
consider itself bound by the Convention and by the rulings of the ECtHR. The ensuing
situation might even be preferable to Accession, as in many ways simpler from a practical
and constitutional viewpoint; at a stretch it could be argued that such an arrangement, albeit
informal, would satisfy the obligation in Article 6(2) TEU.

Finally, such a declaration would also send a very strong message to both Courts: to the
ECtHR to continue in its role of guarantor of fundamental rights for the entire territory of the
Council of Europe; to the Court of Justice to take judicial comity and fundamental rights
protection rather more seriously than it has done so far.

§6. CONCLUSION

There are very cogent reasons why the EU should accede to the Convention, and it is
extremely disappointing that the Court of Justice, in a ruling which seems more focused on
protecting its own prerogatives than it is in protecting fundamental rights (or even the EU
constitutional structure), has made accession very unlikely in the near future. It is to be hoped
that the political institutions and the ECtHR will act to fill the gap left by the Court’s ruling.
This is far from an ideal solution, and yet a clear message needs to be sent both externally
and internally: the EU is a community based on fundamental values, and fundamental rights
are paramount amongst those. If there is a political will to subject the EU to external scrutiny,
there is a way to do so even lacking accession. In the meantime, it is to be hoped that the
Court’s ill-considered judgment will not create irreparable damage to the EU’s willingness to
commit to fundamental rights.

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