A couple of months ago, the negotiations on the EU’s accession to the ECHR resumed, with what was termed the sixth meeting of the 47+1 group – the ad hoc negotiation group involving all 47 Council of Europe and the EU. From 24–26 November, the 47+1 group held their 7th meeting, and the last of 2020. Some progress was made, but from reading the report it is becoming increasingly clear that no immediate breakthroughs are in sight.
In this post I will, using publicly available sources (primarily the meeting report), briefly summarize and take stock of the progress made. I begin by listing the issues that were not dealt with at all during the 7th meeting, and then turn to the issues there were the subject of negotiations at the 7th meeting. Finally, I will say a couple of words about other business at the 7th meeting, notably the exchange of views with representatives of civil society.
Issues deferred to later meetings
As mentioned in my previous post on the resumed negotiations, the issues at hand were sorted into four “baskets”. During the 7th meeting, there was only time to discuss issues relating to the first two of these baskets. The last two, and arguably the most difficult ones, mutual trust between EU member states (“Basket 3”) and the situation of EU acts in the CFSP area falling outside the CJEU’s jurisdiction (“Basket 4”) were not discussed at all.
No particular explanation was given for not discussing issues falling under “Baskets” 3 and 4, but I guess there was simply a lack of time. The meeting report states that the 47+1 group will get back to the issue at its next (8th) meeting.
Issues discussed at the 7th meeting
Since the 6th meeting, the EU side had provided concrete proposals concerning both “Baskets” 1 and 2. These two therefore took center stage at the 7th meeting.
The exact proposals themselves are, sadly, not publicly available. Judging from the list of working documents appended to the meeting report, the document in question is probably the “Negotiation Document submitted by the European Union on 2 November 2020”, which is labeled as “restricted”. Due to the lack of insight into the exact proposal, a certain amount of (qualified) guesswork is necessary when analyzing the meeting report.
“Basket 1”: EU-specific mechanisms of the procedure before the ECtHR
The 2013 DAA, article 3(2), envisaged that the Union could join a case against a Member State as “co-respondent”, but only if certain conditions were met. Crucial among these conditions was whether it “appears” that the allegations of the complainant calls into question the ECHR compatibility of the Union’s constituent treaties. The ECtHR was to be the judge of whether it was “plausible” that this low threshold criterion (“appears”) was met, see 2013 DAA article 3(5).
In Opinion 2/13, the CJEU found this to be unacceptable. That was because it could allow the ECtHR to decide on – albeit as a mere procedural and preliminary matter, and using an extremely low threshold – the distribution of competences between the Union and its Member States (Opinion 2/13, para 231).
To overcome this issue, the EU proposal discussed at the 7th meeting of the 47+1 group was one foreseen long ago as a “safe” solution: that the Union is given an unilateral right to join proceedings as co-respondent. It was also suggested that the Union be afforded a similar unilateral right to later terminate its participation as co-respondent. That solution was not chosen during the 2013 DAA negotiations, since, if I remember correctly, it was rejected by non-EU CoE Member States.
The same group of states also appear to skeptical this time around, although their position appears to have been softened somewhat following Opinion 2/13. Some delegations suggested moving the criteria to other places in the draft accession instruments (i.e. away from the DAA itself), but other still preferred to keep then in the DAA. In this connection, the difference between the EU proposal and the 2013 DAA solution was “discussed”, but no particular decisions appear to have been taken.
Some other, less significant proposals relating to the co-respondent mechanism were also discussed, such as how the Union should be informed of upcoming cases and responsibility issues when EU Member States have reservations against ECHR provisions. Some progress was made on these issues, but again not much concrete.
Under this baskets an EU proposal for amending DAA article 3(6) on the prior involvement procedure was also discussed. The “problem”, as framed by the CJEU in Opinion 2/13, is virtually identical to that which affects the co-respondent mechanism, since under the 2013 DAA the inclusion of the Union as co-respondent was a trigger for the prior involvement procedure. It is unclear from the meeting report what the EU proposal in this connection was, but it likely suggested clarifying that the ECtHR would not be the judge of whether the CJEU had already assessed the ECHR compatibility of the (EU law-related) measure in question. The report does not say much about the discussions, other than that the ECtHR registry was happy to not be the one making such determinations. No opposition against the proposal was noted. Although we don’t know fore sure, perhaps this was the point where most progress was made.
In sum, the 7th negotiation meeting did not result in much progress under “Basket 1”, although one should not underestimate the importance of concrete proposals hitting the table. Concrete proposals tend to frame and structure negotiations, and makes it necessary for the opposing sides to take a stance. This will hopefully lead to more progress down the road.
“Basket 2”: Operation of inter-party applications and of references for an advisory opinion by the ECtHR
On the issue of inter-party applications, the EU proposal appears to have been a clearly formulated exclusion of inter-party cases between EU Member States. In other words, just what the CJEU ordered in Opinion 2/13.
The ensuing discussion appears to have been both frank and brief. “Some delegations suggested that this was rather a matter related to internal EU matters”, as the meeting report (para 13) laconically states. As is perhaps well known by now, I completely agree with the “some delegations”, but at the same time Opinion 2/13 does not appear to leave much wiggle room in this connection. Either inter-party cases between EU Member States have to be completely excluded, or one must bet that the CJEU has changed its mind.
The 47+1 group left the discussions of this issue here, and agreed to revert to it at its next meeting.
A related proposal from the EU would amend the DAA to make it possible for the Union to ask the ECtHR to suspend inter-party applications between EU member states and/or requests for advisory opinions by the ECtHR (protocol 16). Some delegations had reservations of various kinds to this proposal as well, and it was left for further discussion at the next meeting.
Finally, the 47+1 group discussed an EU proposal on the coordination of ECHR article 53 and the Charter of Fundamental Rights article 53. The exact contents of the proposal are unclear to the readers of the meeting report. There was some support for it, as long as it was clear that the minimum protection enshrined in ECHR article 53 was maintained. Some delegations objected to a provision in the DAA itself concerning this, and suggested that it was a better fit for the explanatory report.
The chair concluded that there was some common understanding on the substance of this final proposal, and suggested that the group should discuss a refined wording during the next negotiation meeting. Again we see progress in connection with more technical matters requiring clarification, rather than any real amendments to the 2013 DAA.
“Basket 5”: EU participation in CoE organs
In addition to the four baskets of issues identified by the chair before the 6th negotiation meeting, a new basket of issues were added to the list: articles 6–8 of the (2013) DAA, dealing with EU participation in CoE organs and EU contributions to the financing of the ECtHR’s work.
There were some preliminary discussions of these issues at the 7th negotiation meeting. While there was no final outcomes on any of the issues raised under this basket, the discussions appear to mostly have concerned fine-tuning and updates to the DAA and explanatory report in light of recent developments within the Council of Europe. It seems unlikely that these issues will derail the negotiations.
Other business at the 7th meeting
Among the other business of the 7th meeting was an exchange of views with civil society. An array of human rights organizations took part, including Amnesty International, the International Commission of Jurists, and the European Network of National Human Rights Institutions.
The summary of the civil society contributions in the meeting report probably does not do justice to all the views expressed by civil society. Still, when reading the summary, I was struck by how lofty the contributions of civil society seems to have been. Instead of offering more concrete guidance – which could have the potential to break potential deadlocks – most of civil society seems to have used their brief time on stage to express general support for the accession project as such. In my view, this is not where the problems lie.
As Opinion 2/13 so well illustrates, the only opponent of ECHR accession is the CJEU. All others – all EU member states, all the institutions, and the non-EU CoE Member States – unanimously agreed on the 2013 DAA. And their positions have not shifted. That makes this (re-)negotiation process an unique absurdity: all those at the negotiation table are in agreement on a text, which they must now adapt to meet the (still somewhat unclear) preferences of a third party, the CJEU.
Two further negotiation meetings of the 47+1 group have already been penciled in for 2021:
- 8th negotiation meeting (2–4 February 2012)
- 9th negotiation meeting (23–25 March 2021)
Do note that these dates are subject to confirmation in light of the ongoing COVID pandemic.