The negotiations on the EU’s accession to the ECHR have resumed

From 29 September to 1 October 2020 the so-called 47+1 Group, which consists of representatives of all Council of Europe Member States and the European Union, held their first formal negotiation meeting on the EU’s accession to the ECHR since the 2013 Draft Accession Agreement (DAA) was rejected by the Court of Justice of the European Union (CJEU) in Opinion 2/13. When it was handed down back in December 2014, I characterized Opinion 2/13 as a “direct and unequivocal attack on the accession agreement” by the CJEU. In the same post, I also predicted that it would be “very difficult to satisfy the CJEU’s objections by way of amending the accession [instruments]”.

The fact that it has taken almost six years for the negotiations to properly restart is a testament to these difficulties. At the same time, the resumption of the accession negotiations signals that the parties indeed believe that it is possible to satisfy or circumvent the CJEU’s objections in Opinion 2/13 – or, perhaps, that some of the objections no longer hold water.

The meeting report from the first renegotiation meeting – or the sixth negotiating meeting in CoE parlance, continuing the numbering from the previous round – has just been made available on the CoE website for the accession negotiations. Another key document is the “Paper by the Chair to steer the discussion at the 6th meeting of the CDDH ad hoc group (47+1)“, which was drafted to structure the negotiations. Finally, the EU Commission’s negotiating mandate – a heavily guarded document in the first round of negotiations – was leaked almost simultaneously with its approval in October 2019.

In this blog post, I analyze the meeting report, in light of the Chair’s paper, and take stock of the progress made so far.

A glimpse of the 6th 47+1 negotiation meeting
(Photo credit: Council of Europe)

The key issues facing the negotiators

In her paper, the Chair attempted to structure the negotiations around four “baskets” of issues:

  • Basket 1: EU-specific mechanisms of the procedure before the ECtHR (co-respondent mechanism, prior involvement of the CJEU, shared responsibility).
  • Basket 2: Operation of inter-party applications and of references for an advisory opinion by the ECtHR (ECHR article 33 & Protocol 16).
  • Basket 3: The principle of mutual trust between EU Member States.
  • Basket 4: EU acts in the area of the Common Foreign and Security Policy.

The Chair’s paper also included a list of “tools” available to the negotiators, spanning from amendments to ECHR and the DAA to simple clarifications of the Explanatory Report to the DAA and declarations to be made at the signature of the DAA. The Chair’s paper then went on to analyze the issues under each basket, identifying the relevant parts of the DAA and Opinion 2/13 for each issue, as well as possible action by the 47+1 Group using the “tools” at their disposal.

The Chair in other words tried to play an active role, to ensure that the discussions are focused on the key issue. To me, this strategy seems appropriate for the complex task at hand. Indeed, the active role of the Chair was crucial to bringing the negotiations to a close the last time around. Then, as now, the Norwegian delegate Tonje Meinich chaired the negotiations, and in 2019 she published an article detailing her experiences of the first round of negotiations in The International Journal of Human Rights.

The Chair’s paper appears to have been fairly well received by the negotiating parties. The agenda of the negotiation meeting was clearly drafted with the proposed “baskets” in mind. During the negotiation meeting, though, at least two delegations announced their intentions to raise additional issues during these renegotiations (Meeting report, para 41). Moreover, one delegation inquired about the possibility for an opinion by the ECtHR on the renegotiated DAA (Meeting report, para 43).

In the upcoming negotiation meetings we can therefore expect the number of baskets to increase. That said, at the sixth negotiation meeting the Chair set a 2 November deadline for raising additional issues, although keeping the door ajar for adding further issues at an ever later stage (Meeting report, para 45). Despite the caveat, this active intervention by the Chair will hopefully contribute to concentrating the discussions. When the agenda for the next negotiation meeting is published, we should therefore expect to get a fairly complete overview of the baskets of issues that are to be (re-)negotiated. Since the seventh negotiation meeting is just under a week away, an agenda will likely be published on the CoE EU-ECHR accession website any day.

(Postscript: the agenda for the seventh negotiation meeting was just published, but it is not as detailed as I initially hoped. The report following the meeting will hopefully be more revealing.)

Progress made at the sixth negotiation meeting

At the sixth negotiation meeting, the baskets were discussed in the order they were listed above. From the Meeting Report, it appears that the two first baskets were most thoroughly discussed, and some progress made, while the last two baskets were discussed in a more superficial manner.

No concrete, written proposals for amendment of the DAA or the other draft accession instruments appear to have been put forward during the sixth negotiation meeting. However, the discussions generally progressed to the point that the Chair invited concrete textual proposals for discussion during the next (seventh) negotiation meeting. The Chair set a 2 November deadline for such proposals too, albeit adding that this would not preclude future concrete proposals (Meeting report, para 44).

In the following I will point out the key highlights from the sixth negotiations under each basket, and assess the progress made.

EU-specific mechanisms of the procedure before the ECtHR (“Basket 1”)

An array of sub-issues were discussed under this heading, including the so-called co-respondent mechanism, the so-called prior involvement procedure, and the attribution of conduct/apportionment of responsibility between the Union and its Member States. The thread binding them all together is, according to the CJEU, that they all carry with them the risk that the ECtHR may incidentally have to interpret the internal division of competences between the Union and its Member States.

For the purely procedural mechanisms involved – co-respondent mechanism and the prior involvement procedure – the most obvious solution would be to remove any threshold criteria for triggering them. That is because, under the 2013 DAA, considering whether those thresholds were met was a task for the ECtHR. Even though the thresholds were so low that they almost amounted to a review of whether there was abuse of process, the CJEU in Opinion 2/13 nevertheless found them to be incompatible with Union law.

Making both the co-respondent procedure and the prior involvement procedure unconditional rights were discussed at the sixth negotiation meeting. With the exception of one delegation, there appears to have been a generally positive reaction to making the prior involvement of the CJEU an unconditional rights (Meeting report, para 17). However, views were more mixed with regard to removing the threshold for triggering the co-respondent mechanism (Meeting report, para 13-14).

In a case involving both the Union and one or more Member States, the ECtHR’s incidental determinations regarding attribution of conduct may obviously entail assessment of the distribution of competences. In the negotiations leading up to the 2013 DAA this issue was extensively discussed. When white smoke finally appeared, article 3(7) of the 2013 DAA included a nebulous clause providing for the shared responsibility of all co-respondents (the Union and one or more Member States) – unless the ECtHR “decides that only one of them be held responsible”. This provision could be read as anything from a strong presumption of shared responsibility to a carte blanche for the ECtHR to decide for itself who is responsible.

In Opinion 2/13, the CJEU found that article 3(7) of the 2013 DAA was incompatible with Union law merely due to the risk that the ECtHR could avail itself of the exception to shared responsibility (paras 229–234). Indeed, the CJEU appears to assert that even if the provision is interpreted as a nearly insurmountable presumption, its very existence is incompatible with Union law.

The obvious “solution” to this objection by the CJEU is to delete the exception. In the sixth negotiation meeting, there was some support for this option, but it was far from unanimous (Meeting report, para 16). One delegation also objected, “as a point of principle”, to the idea that a participant before the ECtHR could “set the rules for how it will participate”, and thus be in a privileged position (ibid). The Chair invited concrete drafting proposals for the next (seventh) negotiation meeting. If I allow myself to speculate, based on experience from the negotiations leading up to the 2013 DAA, I predict that the differences between the “EU side” and the Non-EU CoE States will become quite pronounced when they finally get to discussing concrete proposals.

The seemingly tricky issue of how to deal with ECHR reservations made by an EU Member States that is co-respondent with the Union was also discussed. Interestingly, though, the 47+1 actually managed to reach an agreement that “such reservation would remain valid” (Meeting report, para 15). Concrete drafting proposals to put that agreement into action are to be discussed at the next negotiation meeting.

Under this basket the negotiators also discussed the need for a procedure for keeping the Union systematically informed of cases before the ECtHR where the co-respondent mechanism and prior involvement procedure may apply (Meeting report, para 18). Unsurprisingly, some of them asked the obvious question: why should the ECtHR be responsible for keeping the Union informed, and not the EU Member States? Indeed, the EU Member States are probably better placed than the ECtHR when it comes to assessing whether a case also raises issues of Union law. No firm answer was provided in the sixth negotiation meeting, however. All options were kept open, and the negotiations will return to this issue at the seventh negotiation meeting.

Operation of inter-party applications and of references for an advisory opinion by the ECtHR (“Basket 2”)

These two seemingly disparate issues have in common that they could, potentially, be used by EU Member States to violate provisions of the TFEU – notably the infamous article 344 (Meeting report, para 20).

With regard to the issue of inter-party applications (ECHR article 33), the CJEU held in Opinion 2/13 that “only the express exclusion of the ECtHR’s jurisdiction under Article 33 of the ECHR over disputes between Member states […] within the scope ratione materiae of EU law” would be compatible with TFEU article 344 (para 213). In other words, the mere “existence of such a possibility” – i.e. that a Member State could launch an inter-party case in violation of article 344 – led the CJEU to find the 2013 DAA incompatible with that provision (Opinion 2/13, para 208).

During the sixth negotiation meeting, there was strong opposition from some Non-EU CoE Members against amending the ECHR to take this CJEU objection into account (Meeting report, para 22). It appears that those states considered this – rightly, in my view – an internal issue for the Union and its Member States. As I have argued before, the CJEU reinterpreted TFEU article 344 in Opinion 2/13 – establishing new and stricter requirements. Consequently, Opinion 2/13 seemingly makes it almost impossible for the Union and its Member States to enter into international agreements with proper dispute resolution mechanisms. Both the text of TFEU article 344 and the preexisting CJEU case-law arguably implied that the mere existence in an agreement of an avenue through which Member States may violate TFEU article 344 was not problematic.

It should therefore be no surprise that I am sympathetic to the suggestion of the representative of the ECtHR Registry during the sixth negotiation meeting, namely that “the very premise underlying the requirement stated by the CJEU in Opinion 2/13 that the use of Article 33 ECHR be expressly ruled out […] would not be compatible with Convention case-law and should perhaps be revisited” (Meeting report, para 24). Leaving some CJEU objections to the side in this manner, with the hope that the CJEU has changed its mind over the last years, is obviously risky. But the risk of a potential second negative Opinion is worth taking, in my view, rather than going too far in the direction of giving the Union special treatment.

Some potential “solutions” were discussed, including the suspension of inter-party ECtHR proceedings until the CJEU had determined whether they violated TFEU article 344 or not (Meeting report, para 26). However, all such solutions fall short of what the CJEU actually required – and thus also carry with them a risk of a second negative Opinion.

The Chair ended the discussions on TFEU article 344 by concluding that “no delegation had spoken against the general principle that inter-party-applications brought before the ECtHR in violation of EU law were undesirable and should be avoided” (Meeting report, para 27). She also noted that there as “sufficient appetite” for further exploring solutions based on the suspension of ECtHR proceedings (ibid).

With regard to requests by national courts for advisory opinions by the ECtHR under ECHR Protocol 16, the CJEU objected in Opinion 2/13 that domestic courts could circumvent the preliminary reference procedure under TFEU article 267 (para 198). Reading this part of Opinion 2/13 closely, one see that what the CJEU seems to fear here is not that it wouldn’t be involved before the ECtHR gives an advisory opinion, but rather that a request for an advisory opinion would trigger the 2013 DAA prior involvement procedure. This means that the case is brought, by a domestic court, before the CJEU, using a different procedure than TFEU article 267.

This objection was always somewhat puzzling. First, it is difficult to understand why the exact basis of the CJEU’s jurisdiction is – TFEU article 267 or the DAA prior involvement procedure. The CJEU never says clearly what the problem would be. Perhaps it is simply the fact that the prior involvement was supposed to happen using an expedited procedure (2013 DAA article 3(6) and Explanatory Report para 69) – thus potentially creating a “fast track” to a CJEU opinion in cases raising issues of Union law and fundamental rights? Second, the CJEU does not seem to trust that its Member States and their domestic courts will play by the rules. This lack of trust is also evident in the CJEU’s above-discussed objections relating to TFEU article 344 issue.

At the sixth negotiation meeting, little progress was made. The 47+1 Group only seems to have agreed on two preliminary points. First, that the CJEU’s objection regarding ECHR Protocol 16 were not as strongly formulated than its objection concerning TFEU article 344. Second, that the current wording of paragraph 66 of the DAA Explanatory Report “state that the application of the prior involvement-procedure would presuppose an application which the co-respondent mechanism applies”. Exactly what this latter point of agreement means or achieves remains somewhat of a mystery, though. But perhaps this agreement implicitly presupposes that the co-respondent mechanism does not apply to requests for advisory opinion under Protocol 16, since the 2013 DAA provisions on the co-respondent mechanism (article 3) consistently uses the term “application”? However, not applying the co-respondent mechanism in Protocol 16 cases could lead to the “Basket 1” risk that the ECtHR would have to incidentally determine the division of competences between the Union and a Member State.

Is there a way out of these dilemmas? In my view, there are at least two. Firstly, the Protocol 16 issue is an obvious candidate for EU-internal solutions. A drastic, but effective, solution would be for the Union and the EU Member States to agree among themselves not to ratify Protocol 16 (or to withdraw from it, for those who have already ratified). Less drastic options along the same lines may also be possible.

Secondly, there is always the option of not making substantive changes to the 2013 DAA, instead banking on the CJEU to have changed its mind. Given the quite distrustful approach the CJEU had to its Member States concerning the issues under “Basket 2” in Opinion 2/13, this might be a possible, and perhaps even preferable, option. But there is no harm in thoroughly scrutinizing other potential solutions.

The principle of mutual trust between EU Member States (“Basket 3”)

Taken to its extreme, the Union law principle of mutual trust may be at variance with the ECHR system. That is because that principle, according to the CJEU in Opinion 2/13 in the policy Area of Freedom, Security and Justice (AFSJ) requires EU Member States to “presume that fundamental rights have been observed by other Member States” (para 198, emphasis added). An EU member state may thus, save for in exceptional cases, “check whether that other Member State has actually, in a specific case, observed […] fundamental rights” (ibid). In contrast, the ECHR’s non-refoulment obligations did not distinguish between whether the High Contracting Parties involved are members of the same economic integration organization or not.

Since 2014, both courts have climbed down from their horses somewhat.

In Avotiņš, the ECtHR Grand Chamber recognized the “importance of the mutual recognition mechanisms” for Union law (para 113). That recognition of the principle’s importance was, however, immediately followed up by the ECtHR’s observation that “the aim of effectiveness pursued by some of the methods used [in the AFSJ, such as mutual trust,] results in the review of the observance of fundamental rights being tightly regulated or even limited” (para 114).

For its part, the CJEU has since 2014 significantly broadened the exceptions to mutual trust when it comes to fundamental rights, notably in the cases of Petruhhin and Jawo. It may not imply blind trust anymore, but exceptions to mutual trust still remain, well, exceptional.

During the sixth negotiating meeting the 47+1 group barely scratched the surface of this basket, laconically noting the “increased convergence” between the case-law of the two courts, and tasking the CoE secretariat with preparing a compilation of the case-law for the next (seventh) negotiation meeting. (Postscript: this compilation has just been published on the CoE accession website.)

EU acts in the area of the Common Foreign and Security Policy (“Basket 4”)

The 2013 would have granted the ECtHR jurisdiction over conduct carried out under the auspices of the EU’s Common Foreign and Security Policy (CFSP) – a policy that is at least partially outside the CJEU’s jurisdiction. This followed from the simple fact that the 2013 DAA did not distinguish between policy areas. Indeed, the principle that the EU should accede to the ECHR on equal footing with other High Contracting Parties seems to demand such a result. No party to the ECHR are entitled to exclude entire areas of policy from the ECtHR’s jurisdiction.

In a move Steve Peers aptly termed “judicial politics of the playground”, the CJEU held in Opinion 2/13 that since it did not have jurisdiction over (parts of) the CFSP, neither could any other international court. By allowing the ECtHR to adjudicate cases arising from CFSP-related conduct the CJEU consequently asserted that the 2013 DAA “faile[d] to have regard to the specific characteristics of EU law with regard to […] judicial review […] in CFSP matters” (Opinion 2/13, para 257).

Finding a way forward through this obstacle, without undermining the ECHR system, is obviously challenging. While the CJEU’s case-law on the scope of the CFSP jurisdictional carve-out has evolved since 2014, it remains that certain CFSP acts – including acts that may violate human rights – are covered by the carve-out (see e.g. Johansen 2020, Ch 4, particularly at 142–144). The DAA thus haven’t (yet) been saved by an arguably expanding CJEU jurisdiction over CFSP matters.

There was little progress in finding a solution in the sixth negotiating meeting. Familiar suggestions of including a “clear attribution clause” was mooted (Meeting report, paras 37–38). However, it is unclear what an attribution clause would achieve, since the CJEU’s objections in Opinion 2/13 related to its lack of jurisdiction over CFSP acts. Automatically attributing CFSP acts to the Member States – either exclusively or jointly with the Union – for the purposes of the ECHR does not appear to have any effect on this issue. It would not remove the CFSP from the ECtHR’s jurisdiction, and it would obviously not widen the scope of the CJEU’s jurisdiction.

In the end, the Chair reached the lethargic conclusion that there was a “common goal by the delegations […] that, in order to avoid ‘black holes’ in the European human rights protection, the Convention system should be able to accommodate all acts in the CFSP area. The question was ultimately to find that appropriate way how to get there.” (Meeting report, para 39.)

Further issues raised

Towards the end of the sixth negotiation meeting, some delegations brought up additional issues that were not included in the four “baskets”.

First, the Chair and the CoE Secretariat brought up the issue of the relationship between ECHR article 53 and the EU Charter of Fundamental Rights article 53 (Meeting report, para 40). To overcome the CJEU’s worries in Opinion 2/13 concerning the coordination of these two provisions, it was preliminarily suggested to clarify their relationship in the Explanatory Report to the DAA.

Second, two delegations pointed out that there had been changes in the CoE since the adoption of the 2013 DAA, and that articles 6, 7, and 8 of the DAA (dealing with the participation of the Union in CoE organs and its budgetary contribution to the CoE) therefore had to be revised to reflect those changes (Meeting report, para 41). These delegations also announced that they would bring up further issues, as already mentioned.

Finally, one delegation inquired about the possibility if asking the ECtHR for an opinion on the renegotiated DAA, as alluded to above (Meeting report, para 43). Asking the ECtHR for such an opinion would in principle be possible under ECHR article 47. In my view, doing so would probably also be a wise move. A positive opinion by the ECtHR may potentially influence the CJEU when it will, inevitably, be asked to give its opinion on the renegotiated DAA. Moreover, waiting for an ECtHR opinion is unlikely to delay the process much. It might even be possible to ask both courts for an opinion at more-or-less the same time. If so, I would expect that the ECtHR will be able to deliver an opinion sooner than the CJEU. Last time the ECtHR was asked to give an opinion under ECHR article 47, it only took about six months to do so.

Conclusion

While the negotiations have no doubt started, it is already apparent that they will take time. Several of the CJEU’s objections in Opinion 2/13 concern issues that were extremely delicate in the negotiations of the 2013 DAA. From the perspective of the non-EU Member States of the CoE, the negotiations are now essentially being reopened to deal with mostly internal affairs between the EU and its Member States. This is a recurrent theme in EU external relations: the externalization of issues that, at least in my view, should be dealt with internally.

Against this background, the negotiations will likely be quite difficult. Hopefully, however, the obstacles can nevertheless be overcome without undermining the ECHR system. If not, there is only one way forward: amending EU primary law to neutralize the effects of Opinion 2/13.

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