The EU Accession to the ECHR after Opinion 2/13: Reflections, Solutions and the Way Forward Dr Sonia Morano – Foadi and Dr Stelios Andreadakis European Parliament - Committee on Constitutional Affairs Hearing 20 April 2016

EU pre-requisites and principles for Accession EU’s Accession is of ‘constitutional significance’, as it would ‘entail a substantial change in the present Community system in that it would entail the entry of the Community into a distinct international institutional system as well as integration of all the provisions of the Convention into the Community legal order’. (Opinion 2/94) EU’s Accession is of ‘constitutional significance’, as it would ‘entail a substantial change in the present Community system in that it would entail the entry of the Community into a distinct international institutional system as well as integration of all the provisions of the Convention into the Community legal order’. (Opinion 2/94)

Opinion 2/13 5 main areas 1. Autonomy of the EU legal order and the EU law A. Need for coordination between Art 53 ECHR and Art 53 Charter B. Mutual Trust between the EU Member States C. Protocol No 16 ECHR and advisory jurisdiction of ECtHR 2.Article 344 TFEU and the exclusive jurisdiction of CJEU 3. Co-respondent mechanism 4. Prior involvement of the CJEU 5. Common Foreign and Security Policy (CFSP) 5 main areas 1. Autonomy of the EU legal order and the EU law A. Need for coordination between Art 53 ECHR and Art 53 Charter B. Mutual Trust between the EU Member States C. Protocol No 16 ECHR and advisory jurisdiction of ECtHR 2.Article 344 TFEU and the exclusive jurisdiction of CJEU 3. Co-respondent mechanism 4. Prior involvement of the CJEU 5. Common Foreign and Security Policy (CFSP)

1. Preserving EU Law’s Autonomy “We have to be the arbiter of Union law and they have to be the arbiter of whether that conforms with the Convention. […this is] very important because there is always a danger that they would ended up interpreting our law rather than testing its conformity” (Interview 9) “There are some special arrangements, which one could say favour the EU with respect to the other Contracting Parties, but I think most of them are strictly linked to the peculiarities of the EU, not being like the other Contracting Parties”. (Interview B) “We have to be the arbiter of Union law and they have to be the arbiter of whether that conforms with the Convention. […this is] very important because there is always a danger that they would ended up interpreting our law rather than testing its conformity” (Interview 9) “There are some special arrangements, which one could say favour the EU with respect to the other Contracting Parties, but I think most of them are strictly linked to the peculiarities of the EU, not being like the other Contracting Parties”. (Interview B)

Incompatibility between Art 53 ECHR and Art 53 Charter “In EU law it is possible to go further, but not below. That is kind of coordination. The problem is when there is no Strasbourg jurisprudence. ……. We have also similar situations between national courts’ and our jurisprudence and it is possible in specific situations to get redress. So ……. the same principles should be applied” (Interview 2B) “it could be compared as the Charter being the house and the Convention being the chamber in the house” (Interview 3) Solution: To amend the DAA including an additional provision, which would clarify the relationship between art 53 ECHR and 53 Charter in setting the standards of fundamental rights protection. “In EU law it is possible to go further, but not below. That is kind of coordination. The problem is when there is no Strasbourg jurisprudence. ……. We have also similar situations between national courts’ and our jurisprudence and it is possible in specific situations to get redress. So ……. the same principles should be applied” (Interview 2B) “it could be compared as the Charter being the house and the Convention being the chamber in the house” (Interview 3) Solution: To amend the DAA including an additional provision, which would clarify the relationship between art 53 ECHR and 53 Charter in setting the standards of fundamental rights protection.

Protocol 16 and the advisory jurisdiction of the ECtHR “dialogue” between the higher national courts of Contracting Parties and the Strasbourg Court vs a sui generis forum shopping between Strasbourg and Luxembourg Solution: To add a provision in the DAA whereby the courts of the Member States must abstain from requesting an advisory opinion from the ECtHR on the interpretation, application and validity of EU law, and must instead refer the question to the CJEU through the preliminary ruling procedure “dialogue” between the higher national courts of Contracting Parties and the Strasbourg Court vs a sui generis forum shopping between Strasbourg and Luxembourg Solution: To add a provision in the DAA whereby the courts of the Member States must abstain from requesting an advisory opinion from the ECtHR on the interpretation, application and validity of EU law, and must instead refer the question to the CJEU through the preliminary ruling procedure

2. Resolving the Art 344 TFEU tension The CJEU is “the Supreme Court of the Union and the ECtHR is a specialised Court on human rights representing a wider range of states, but without having to deal with institutional questions like Luxemburg and to answer questions from the national judges”. (Interview 4) Solution: To adopt a provision in the DAA expressly excluding the competence of the ECtHR under Art 33 ECHR from disputes between EU Member States or between them and the EU in issues concerning the application of the ECHR within the scope ratione materiae of EU law The CJEU is “the Supreme Court of the Union and the ECtHR is a specialised Court on human rights representing a wider range of states, but without having to deal with institutional questions like Luxemburg and to answer questions from the national judges”. (Interview 4) Solution: To adopt a provision in the DAA expressly excluding the competence of the ECtHR under Art 33 ECHR from disputes between EU Member States or between them and the EU in issues concerning the application of the ECHR within the scope ratione materiae of EU law

3. Co-respondent Mechanism: Involvement and allocation of responsibility “the applicant has the full range of actors at his disposal without having to preventatively pose himself question of distribution of competences, because it is not only the party which is allegedly responsible for the violation in question, but also another party, which may be potentially responsible” (Interview B) Solutions: Revision of Art 3(5) DAA: EU or MS automatic status of co-respondent upon their request without any form of review from the ECtHR. Revision of Article 3(7) DAA, no exception to the joint responsibility rule and no possibility of a Member State be held responsible in so far as it has made a reservation. “the applicant has the full range of actors at his disposal without having to preventatively pose himself question of distribution of competences, because it is not only the party which is allegedly responsible for the violation in question, but also another party, which may be potentially responsible” (Interview B) Solutions: Revision of Art 3(5) DAA: EU or MS automatic status of co-respondent upon their request without any form of review from the ECtHR. Revision of Article 3(7) DAA, no exception to the joint responsibility rule and no possibility of a Member State be held responsible in so far as it has made a reservation.

4. Prior involvement of the CJEU Prior involvement is “in the interests of the Strasbourg system, because through this prior examination at an internal level, the Strasbourg Court can observe the perspective of the legal system which is challenged as well as the balancing exercise that takes place in the context of proportionality”. (Interview C) “The relationship will not be hierarchical, but based on the principle of cooperation. The Court recognises that the ECtHR will have the ‘last word’ and we reasonably expect that we will have somehow the opportunity to have the ‘first word’ [on EU law]. This is the essential requirement” (Interview 12) Solution: Revision of DAA so that suspension of proceedings if EU as co-respondent informs it that the CJEU would be involved’; full and systematic information of EU in relation to any case pending before ECtHR, in which EU could potentially be co-respondent; and ECtHR no decision on admissibility of prior involvement if CJEU has not yet interpreted the EU law at issue. Prior involvement is “in the interests of the Strasbourg system, because through this prior examination at an internal level, the Strasbourg Court can observe the perspective of the legal system which is challenged as well as the balancing exercise that takes place in the context of proportionality”. (Interview C) “The relationship will not be hierarchical, but based on the principle of cooperation. The Court recognises that the ECtHR will have the ‘last word’ and we reasonably expect that we will have somehow the opportunity to have the ‘first word’ [on EU law]. This is the essential requirement” (Interview 12) Solution: Revision of DAA so that suspension of proceedings if EU as co-respondent informs it that the CJEU would be involved’; full and systematic information of EU in relation to any case pending before ECtHR, in which EU could potentially be co-respondent; and ECtHR no decision on admissibility of prior involvement if CJEU has not yet interpreted the EU law at issue.

5. The CFSP and the principle of mutual trust in the AFSJ "[...] I have no specific preferences. But for example in the Agreement it should be agreed that the Strasbourg Court is not dealing with these cases. This is one solution. [...]“ (Interview 2B) “the decision-making in the CFSP has been already problematic enough without a question of outside control” (Interview B) Solution: amendment of the Draft Accession Agreement to include a provision which excludes CFSP from the ECtHR’s jurisdiction, and ASFJ: a provision clarifying the scope of the principle of mutual trust - EU Member States cannot be held liable under the Convention for failing to carry out a review of another Member State’s compliance with ECHR rights "[...] I have no specific preferences. But for example in the Agreement it should be agreed that the Strasbourg Court is not dealing with these cases. This is one solution. [...]“ (Interview 2B) “the decision-making in the CFSP has been already problematic enough without a question of outside control” (Interview B) Solution: amendment of the Draft Accession Agreement to include a provision which excludes CFSP from the ECtHR’s jurisdiction, and ASFJ: a provision clarifying the scope of the principle of mutual trust - EU Member States cannot be held liable under the Convention for failing to carry out a review of another Member State’s compliance with ECHR rights

The Way Forward “Naturally, it is evident to me that the Accession, which is declared in Article 6 of the Lisbon Treaty is possible and it will happen. The Opinion 2/13 was negative because the DAA was not well drafted. And in our Opinion everything is said. If we overcome these obstacles the Accession is not only possible, but it will be welcome”. (Interview 2B) “Naturally, it is evident to me that the Accession, which is declared in Article 6 of the Lisbon Treaty is possible and it will happen. The Opinion 2/13 was negative because the DAA was not well drafted. And in our Opinion everything is said. If we overcome these obstacles the Accession is not only possible, but it will be welcome”. (Interview 2B)

Many thanks for your attention