EDITED BY FEDERICO CASOLARI
Dripping Water Hollows Out Stone…
Federico Casolari 1
‘The drop hollows out the stone, the ring is worn by use, and the curved ploughshare is rubbed by the pressure.’ With these words, the famous Latin poet Ovid reminds us in Epistulae ex Ponto that with an iron will, one can achieve otherwise impossible goals.
As Felix Ronkes Agerbeek rightly noted in his analysis of the EU accession to the European Convention on Human Rights (ECHR) recently published in an EU Law Live Weekend Edition, 2 following Opinion 2/13, 3 the European Union’s participation in the ECHR has been described in terms of a mission impossible.4 This is mainly due to the arguments used by the Court of Justice of the European Union (CJEU) to declare the draft agreement on the Union’s accession to the ECHR incompatible with the EU Treaties, with arguments that focus on a profound contrast between the draft agreement and the structural elements and autonomy of the EU legal order.
Some important changes have taken place since then. First, the Court of Justice has strongly contributed to promoting the ‘normalisation’ of the Common Foreign Security Policy (CFSP)5. The latest development in this respect is the KS and KD ruling,6 in which the Court – while emphasising the inclusion of the CFSP in the EU constitutional framework, which in turn is based on the ‘very identity’ of the EU legal order, namely the values enshrined in Article 2 TEU7 – held that ‘if the [CFSP] acts and omissions at issue are not directly related to those political or strategic choices, the Court of Justice of the European Union has jurisdiction to assess the legality of those acts or omissions or to interpret them.’8 Secondly, the tenacity of negotiators like Felix Ronkes Agerbeek made it possible to reach a provisional agreement on the revision of the accession instruments,9 trying to find workable solutions to the problems highlighted by the Luxembourg judges in their Opinion 2/13.
1. Full Professor of EU law and Head of the Department of Legal Studies at the Alma Mater Studiorum – University of Bologna, federico. casolari@unibo.it.
2. Felix Ronkes Agerbeek, ‘EU Accession to the European Convention on Human Rights: An EU Negotiator’s Perspective’, EU Law Live Weekend Edition, 22 June 2024, at 2.
3. Opinion 2/13 of 18 December 2014 (Accession of the European Union to the ECHR), ECLI:EU:C:2014.
4. Editorial comments, Common Market Law Review, (2015) 52, Issue 1, 1–16 at 14.
5. Ramses A. Wessel, Foreign and Security Policy. The Choice of the Appropriate Legal Basis, in Claire Kilpatrick and Joanne Scott (eds), Contemporary Challenges to EU Legality (Oxford University Press 2021), 71 – 99, 71; Peter Van Elsuwege, Judicial Review and the Common Foreign Security Policy: Limits to the Gap-Fillinf Role of the Court of Justice, Common Market Law Review, (2021) 58, Issue 6, 1731–1760. See also Editorial comments, Common Market Law Review, (2018) 55, Issue 6, 1675–1684.
6. Judgment of 10 September 2024, KS and KD / Council and others (C-29/22 P and C-44/22 P, ECLI:EU:C:2024:725).
7. Ibid., para 68.
8. Ibid., para 117.
9. Steering Committee for Human Rights (CDDH), Interim Report to the Committee of Ministers, for information, on the negotiations on the accession of the European Union to the European Convention on Human Rights, including the revised draft accession instruments in appendix, CDDH(2023)R_EXTRA ADDENDUM, 4 April 2023.
On the basis of the fruitful exchange of views that took place during a seminar organised within the framework of my course on EU Constitutional Law at the University of Bologna (held on 10 April 2024), and in the light of the most recent developments in practice mentioned above, Alezini Loxa, Xavier Groussot, Peter Van Elsuwege, and Nicola Bergamaschi propose a doctrinal reflection on the EU accession to the ECHR. The contribution by Alezini Loxa and Xavier Groussot sets the scene and identifies the main trajectories of the path of rapprochement between the EU legal system and that of the ECHR. In his contribution, Peter Van Elsuwege focuses on one of the latest stages of this path, namely the Court of Justice’s judgment in KS and KD, assessing its implications with respect to the accession process. Finally, Nicola Bergamaschi examines the draft agreement, checking its level of compliance with the red lines drawn by the CJEU in its jurisprudence, with particular reference to the mutual trust principle.
The contributors argue that, even if it is still too early to conclude that the gaps measured by the Court of Justice in its Opinion 2/13 have been definitively bridged, there is no doubt that, drop by drop, what seemed to be a granitic stance against accession to the ECHR now appears less unattainable.
At a time when the winds of legal populism and unilateralism are blowing strongly, this openness should certainly not be underestimated.
Bologna, 10 November 2024
Once Upon a Time Before the Accession of the EU to the ECHR: From Shadow to Light
Alezini Loxa 1 and Xavier Groussot 2
I. Introduction
The European Union (EU) accession to the European Convention of Human Rights (ECHR) has been firmly on the agenda for the past thirty years. In this contribution, we will discuss how the coordination of the two systems has moved from the shadow to the (spot)light, emphasising the role played by the Court of Justice of the EU (the Court, or CJEU) throughout the process. We argue that the interaction of the two systems can be narrated through a history played out in three parts. In the first part, the protection of fundamental rights became embedded in European Community law in the shadow of its much-defended autonomy (II. ‘Shadow’). In the second part, we discuss the attempts to accede to the ECHR and to bring human rights into the spotlight, and we present how these issues were deflected through the interpretation of the Court in its Opinion 2/13 (III. ‘ClairObscur’) In the third part, we show how the Court has, step by step, overcome the hurdles it created and has finally provided us with a light at the end of the tunnel (IV. ‘Light’).
II. Shadow: Building the Autonomy of Community Law in the Shadow of Fundamental Rights Obligations
Any discussion on the interaction of EU law with the ECHR necessarily has a starting point in the 1970s, when the Court developed its doctrine on the protection of fundamental rights as general principles of EU law.3 In a series of cases challenging Community action for lack of compliance with human rights, the Court embedded fundamental rights as an integral part of Community law by suggesting that they are protected as general principles inspired by the common constitutional traditions of the Member States and the International Conventions to
1. Post-doctoral Researcher in EU Law at Lund University, Department of Law, alezini.loxa@jur.lu.se.
2. Professor of EU Law at Lund University, Faculty of Law, xavier.groussot@jur.lu.se.
3. See, however, Gráinne de Búrca, ‘The Road Not Taken: The European Union as a Global Human Rights Actor’ (2011) 105 The American Journal of International Law 649.
which they are parties.4 In so doing, the Court did not explicitly address the relation of Community law to the ECHR, but rather dealt with the matter in the shadows. It suggested that the rights protected by the ECHR are a source of inspiration for the development of fundamental rights as general principles. The relevant findings were key in safeguarding the autonomy of the EU legal system and the primacy of EU law, and they were later incorporated into the treaty text.5 As this approach allowed space for fundamental rights considerations when applying Community law, it was also accepted as aligning with the obligations of Member States to the ECHR.6
In parallel to the jurisprudential evolution, discussions were taking place within European institutions on a potential accession to the ECHR.7 In the context of such discussions and absent any draft agreement, the Council sought an Opinion from the Court pursuant to Article 218(11) TFEU on whether a potential accession to the ECHR would be compatible with EU law. In Opinion 2/94, the Court held that the EU had no express or implied competence in the field of human rights, and for that reason, any accession would be impossible without a treaty change.8 That Opinion was the first time in which the Court made sure that accession plans would remain in the shadows (the second coming two decades later with Opinion 2/13). Though the Court of Justice rejected accession at this time, it started to consolidate the human rights acquis based on the doctrine of the unwritten general principles, using more and more extensively the ECHR provisions and case law as sources of inspiration from the mid-nineties to the entry into force of the Lisbon Treaty and the EU Charter of Fundamental Rights in December 2009.9
4. Judgment of 12 November 1969, Stauder / Stadt Ulm (29/69, ECLI:EU:C:1969:57); Judgment of 14 May 1974, Nold KG / Commission (4/73, ECLI:EU:C:1974:51); Judgment of 17 December 1970, Internationale Handelsgesellschaft mbH / Einfuhr- und Vorratsstelle für Getreide und Futtermittel (11/70, ECLI:EU:C:1970:114).
5. See Takis Tridimas, ‘Primacy, Fundamental Rights and the Search for Legitimacy’ in Loïc Azoulai and Miguel Poiares Maduro (eds), The Past and Future of EU Law : The Classics of EU Law Revisited on the 50th Anniversary of the Rome Treaty (Hart Publishing 2010). See also preamble to the Single European Act
6. Judgment of the ECtHR of 30 June 2005, Bosphorus Hava Yollari Turizm Ve Ticaret Anonim Şirketi v. Ireland (Application no 45036/98, ECLI:CE:ECHR:2005:0630JUD004503698).
7. 1979 Bulletin of the European Communities, Supplement 2/79, Memorandum on the accession of the European Communities to the Convention for the Protection of Human Rights and Fundamental Freedoms of 4 April 1979; Communication from the Commission, On Community accession to the European Convention for the Protection of Human Rights and Fundamental Freedoms, SEC (90) 2087 final.
8. Opinion 2/94 of 28 March 1996 (Accession of the Community to the ECHR), ECLI:EU:C:1996:140. Note that at the time the ECHR was open to accession by States only due to the wording of Article 59 ECHR before amendment by Protocol 14.
9. See for a systematic assessment of the case law, Xavier Groussot, General Principles of Community Law (Europa Law Publishing, 2006).
III. A European Clair-Obscur: From Deflection to Reflection on EU Fundamental Rights
The second part of the history of accession is one of deflection. It starts with changes in the Treaties as a basis for ensuring the closer interaction of the two systems and by a political commitment to stronger accountability for the EU in the sphere of human rights. In this regard, the Treaty of Lisbon under Article 6(2) TEU provided a clear basis for accession to the ECHR. What is more, Article 6(2) suggested that a potential accession shall not affect the Union’s competences under the Treaties. Next to this key provision, the EU also has adopted its own Charter of Fundamental Rights which became binding by virtue of Article 6(1) TEU. The Charter recognised the ECHR as a source of inspiration in the preamble and a closer examination of the explanations of the Charter serves as a constant reminder of the relationship between many Charter rights and specific ECHR Rights. In addition, Article 52(3) refers to the ECHR to define the scope of protection of rights that exist in both the ECHR and the Charter.10 Finally, Article 53 of the Charter includes a provision on the level of protection which provides that the Charter shall not be interpreted as restricting human rights recognised among others in the ECHR. These changes might not have led to accession, but they did lead to significant coordination between the two systems.11
In the meantime, Article 59(2) ECHR was also amended by the adoption of Protocol 14 to create a clear basis for accession of the EU to the ECHR. With these changes shining light on a potential accession, a Draft Accession Agreement was prepared and submitted to the Court of Justice for an Opinion. With Opinion 2/13, the Court in Full Chamber deflected the issue and pushed the potential of accession back into the shadow.12 In a muchanalysed and lengthy Opinion, the Court explained the incompatibility of the Draft Accession Agreement due to the specific characteristics of EU law.13 Without going into detail as to the five grounds on which the Court based its incompatibility, it suffices to say that all the matters related broadly to the autonomy of EU law and the jurisdiction of the Court. The strongest point of contention – which is reflected by the numerous arguments made by the Member States,14 and especially the French Republic – was based on the lack of CJEU jurisdiction in Common Foreign and Security Policy (CFSP) matters. According to Article 24(1) TEU, the Court has limited jurisdiction over the CFSP, and it is only allowed to monitor compliance with Article 40 TEU (conferral) and to review the legality of certain decisions adopted under Article 275(2) TFEU (annulment procedure for restrictive measures). In a nutshell, the argument was that accession to the ECHR is not possible since the ECtHR could
10. Xavier Groussot and Eduardo Gill-Pedro, ‘Old and New Human Rights in Europe: The Scope of EU Rights versus that of ECHR Rights’ in Eva Brems and Janneke Gerards (eds), Shaping Rights in the ECHR: The Role of the European Court of Human Rights in Determining the Scope of Human Rights (Cambridge University Press 2014) arguing that this includes case-law as well.
11. See Johan Callewaert, ‘Do We Still Need Article 6(2) TEU? Considerations on the Absence of EU Accession to the ECHR and Its Consequences’ (2018) 55 Common Market Law Review 1685.
12. Opinion 2/13 of 18 December 2014 (Accession of the European Union to the ECHR), ECLI:EU:C:2014.
13. It would be impossible to provide an exhaustive list Piet Eeckhout, ‘Opinion 2/13 on EU Accession to the ECHR and Judicial Dialogue: Autonomy or Autarky’ (2015) 38 Fordham International Law Journal 955; ibid; Tobias Lock, ‘The Future of the European Union’s Accession to the European Convention on Human Rights after Opinion 2/13: Is It Still Possible and Is It Still Desirable’ (2015) 11 European Constitutional Law Review 239; Giuseppe Martinico, ‘Building Supranational Identity: Legal Reasoning and Outcome in Kadi I and Opinion 2/13 of the Court of Justice’ (2016) 8 Italian Journal of Public Law 235.
14. Opinion 2/13, paras 131–135.
The overlapping rule of law litigations to save Europe from a general backsliding brought the two courts back together in a very timely fashion, at the same time that the accession negotiations resumed in 2020
IV. Light: Light at the End of the Tunnel
not have jurisdiction in CFSP matters when the CJEU has no jurisdiction. For many, the Opinion was seen as a significant blow to any potential accession.15 And indeed, this was the prevalent feeling in academic and political circles until the negotiations for accession resumed in 2020. Following Opinion 2/13, the relationship between the two courts was not at its best for many years – which has lucidly been called a ‘somber mood’ by Iglesias Sánchez and Sarmiento.16 Yet, it appears that the overlapping rule of law litigations to save Europe from a general backsliding brought the two courts back together in a very timely fashion, at the same time that the accession negotiations resumed in 2020. It may be said that the spirit of the rule of law has generated analytical reasonings and reflections in a debate too often steered by passions and disruptions.
In 2020, the accession negotiations resumed. While the negotiations managed to overcome all the points raised by the Court in Opinion 2/13, and a Draft Accession Agreement was prepared in March 2023, one point remained unresolved. And this was the jurisdiction of the Court in the CFSP.17 In Opinion 2/13, the Court had deemed irreconcilable the fact that a potential accession to the ECHR would give full powers to the ECtHR to review CFSP action for respect of fundamental rights, whereas the CJEU’s jurisdiction would still be limited as per the Treaty provisions.
Overcoming this issue would appear to be complicated, as only a Treaty change would confer full jurisdiction to the Court to review CFSP action. But even the unlikely scenario of a Treaty change being effected would not mean that Member States would be on board with extending the Court’s jurisdiction. In this section, we argue that in a line of case law that began with Rosneft and Bank Refah Kargaran, and recently concluded with Neves77 and KS and KD the Court resolved the issue that it had itself created.18
15. Adam Lazowski and Ramses A Wessel, ‘When Caveats Turn into Locks: Opinion 2/13 on Accession of the European Union to the ECHR’ (2015) 16 German Law Journal 179; Eleanor Spaventa, ‘A Very Fearful Court: The Protection of Fundamental Rights in the European Union after Opinion 2/13’ (2015) 22 Maastricht Journal of European and Comparative Law 35; Jed Odermatt, ‘A Giant Step Backwards - Opinion 2/13 on the EU’s Accession to the European Convention on Human Rights’ (2015) 47 New York University Journal of International Law and Politics 783.
16. Daniel Sarmiento and Sara Iglesias Sanchez, ‘The Strasbourg Effect’, EU law Live Issue n 23, 13-17 May 2024.
17. Opinion 2/13, paras 247–257.
18. Judgment of 28 March 2017, Rosneft (C-72/15, ECLI:EU:C:2017:236); Judgment of 6 October 2020, Bank Refah Kargaran / Council (C-134/19 P, ECLI:EU:C:2020:793); Judgment of 10 September 2024, Neves 77 Solutions (C-351/22, ECLI:EU:C:2024:723); Judgment of 10 September 2024, KS and KD / Council and others (C-29/22 P and C-44/22 P, ECLI:EU:C:2024:725).
Before Neves 77 and KS and KD
First, in Rosneft, the Court had to address whether it had jurisdiction to examine the validity of decisions on restrictive measures in the context of the preliminary ruling procedure when Article 275(2) TFEU seems to limit its jurisdiction for actions brought under Article 263 TFEU. In that case, the Court held that a reading of Article 275(2) TFEU in light of Article 19(1) TEU and Article 47 of the Charter demands an interpretation of the relevant provision meaning that the Court has a limited jurisdiction rationae materiae. 19 This means, in turn, that the Court only has jurisdiction to review the legality of decisions on restrictive measures and not of all CFSP acts in general and that its jurisdiction is not limited to proceedings initiated under Article 263 TFEU, as Article 275(2) TFEU might seem to suggest on a first reading. Building on Rosneft, in Bank Refah Kargaran, the Court confirmed that the limitations of Article 275(2) refer to a rationae materiae limit which relates to any issue of review of decisions on restrictive measures. According to the Court, the coherence of the EU system of judicial protection requires that the Court has jurisdiction to rule on the harm caused by restrictive measures and also in proceedings of actions for damages.20 At this stage, the first limitations of the Court’s jurisdiction on CFSP were overcome. Unlike what an initial reading of Article 275(2) TFEU would suggest, the Court interpreted the provision as meaning that its jurisdiction extended to actions brought under Article 268 TFEU further to actions brought under Article 263 TFEU, in as much as they relate to CFSP decisions on restrictive measures. This would mean that, in principle, all other CFSP actions beyond restrictive measures should escape the Court’s jurisdiction. However, nothing escapes the Court, as we learned on September 10th, 2014, when the decisions in Neves 77 and KS and KD were issued, thereby completing the CFSP jurisdiction puzzle.
Nothing escapes the Court, as we learned on September 10th, 2014, when the decisions in Neves 77 and KS and KD were issued, thereby completing the CFSP jurisdiction puzzle
19. Judgment of the Court of Justice, Rosneft, para 76.
20. Judgment of the Court of Justice, Bank Refah Kargaran, para 39.
It is worth observing here that AG Ćapeta, in her Opinions in Neves77 and KS and KD, emphasised that the broader context of these two cases is the accession to the ECHR.21 However, the restrictive solution proposed by the Advocate General in Neves 77 made it impossible to make a strong case for accession to the ECHR. As a result, much of the debate on accession to the ECHR in the last months has focused on KS and KD and not on Neves 77. 22 The Court of Justice, by adopting a different reasoning and offering a divergent interpretation regarding general restrictive measures, has rightly put Neves 77 back in the centre of the issue of accession to the ECHR together with KS and KD
After Neves 77 and KS/KD
In the Neves 77 case, the Court had to deal with decisions relating to restrictive measures of general scope (restrictive measures are usually implemented through the process of Article 215 TFEU).23 Due to the individual nature of the restrictions, they are exempted from the Court’s lack of jurisdiction in CFSP under Article 275 TFEU, while in Rosneft the Court further extended its jurisdiction to validity review in the context of a preliminary ruling procedure.24 In the present case, the restrictive measures were not of an individual nature but rather imposed a general prohibition of brokering services in relation to military goods in the context of the Russian aggression against Ukraine in 2013, and the relevant measures were not implemented by a regulation adopted under Article 215 TFEU. In Neves 77, the Court suggested that the Council’s failure to take all necessary measures to adopt the relevant action as an implementation of Article 215 TFEU cannot prejudice the right to judicial protection of the parties.25 In this regard, the Court drew on Article 2 TEU and Article 21 TEU as expressions of the rule of law that should guide EU external action and action in the CFSP in order to establish jurisdiction in interpreting restrictive measures of general scope even if these measures were not based on an implementation of a regulation adopted under Article 215 TFEU.26 Following the recognition of its own jurisdiction, the Court of Justice was then able to interpret the legality of a national measure confiscating the entire proceeds of a brokering transaction by considering Article 17 of the EU Charter. This case is essential for accession to the ECHR since by extending its 267 TFEU jurisdiction based on Article 2 TEU (in a situation where it was asked to interpret the proportionality of a national measure authorising the confiscation of the entire profit of a transaction); the CJEU asserted that EU fundamental rights are also applicable when Member States adopt national sanctions measures that are based on a provision of general scope relating to the CFSP, and this even if this EU legislation is not adopted under Article 215 TFEU. Neves 77 is a very progressive ruling that extends the ‘rule of law’ logic (now based on Article 2 TEU) already seen in Kadi, Rosneft, or Bank Refah Kargaran (and based specifically on the rhetoric of effective judicial
21. Advocate General Ćapeta’s Opinion of on 23 November 2023, Neves 77 Solutions (C-351/22, ECLI:EU:C:2023:907); Advocate General Ćapeta’s Opinion of on 23 November 2023, KS and KD / Council and others (C-29/22 P and C-44/22 P, ECLI:EU:C:2023:901).
22. Xavier Grousssot and Anna Zemskova, ‘Using Financial Tools to Protect the Rule of Law’ in Anna Södersten and Edwin Hercok (eds) The Rule of Law in the EU: Crisis and Solutions, SIEPS, 2023.
23. Judgment of the Court of Justice, Neves 77, para 42.
24. See also Judgment of 3 September 2008, Kadi and Al Barakaat International Foundation / Council and Commission (C-402/05 P and C-415/05 P, ECLI:EU:C:2008:461).
25. Judgment of the Court of Justice, Neves 77, paras 48–49.
26. Judgment of the Court of Justice, Neves 77, paras 51–53.
protection and Article 47 of the EU Charter). KS and KD delivered on the same day could have been decided by operating the same progressive ‘rule of law’ logic, thus following the line advocated by AG Ćapeta in her opinion. Yet, the Court of Justice decided otherwise by drawing a factual distinction between Neves 77 and KS and KD that led to a tournant in terms of judicial reasoning. For the Court of Justice, and in a nutshell, Neves77 is about restrictive measures, whereas KS and KD is not.
Indeed, KS and KD is concerned with a more sensitive scenario than Neves 77 from a human rights perspective, that is, an action for damages brought before the General Court for harm caused by the CFSP mission EULEX Kosovo. The General Court dismissed the action – for lack of jurisdiction to adjudicate on the matter.27 In a Grand Chamber decision, the Court annulled the decision of the General Court and established jurisdiction to hear the relevant action in a quite peculiar way since its overall logic was based on showing the limits of effective judicial protection and that effective judicial protection is, in other words, not absolute. This is quite a stunning difference compared with the above-discussed jurisprudence. The reasoning of the Court of Justice, therefore, deserves some closer attention.
In coming to such a conclusion in KS and KD, the Court of Justice went through all the human rights arguments of the parties and rejected their relevance for extending jurisdiction. After suggesting that Article 19 TEU demands the narrow interpretation of Article 24(1) TEU and Article 275 TFEU, the Court rejected the argument of the applicants that jurisdiction is demanded both in light of the fundamental rights of individuals that the EU should respect when acting within the scope of EU law (Articles 47 of the Charter and in Articles 6 and 13 ECHR) and in relation to the broader constitutional architecture of the EU which demands respect for fundamental rights in the way in which the EU structures both its internal and its external action (Article 2, Article 3(5) and Articles 6, 19, 21 and 23 TEU).28 The Court held that invoking Article 47 EU Charter together with Articles 6 and 13 ECHR cannot in themselves extend the jurisdiction of the Court under Article 275 TFEU.29 And relatedly, the Court rejected the argument of the European Commission suggesting that jurisdiction should be established by interpreting the relevant provisions in light of Article 6(2) TEU.30 Moreover, the Court rejected the argument that jurisdiction could have been established due to the Court’s exclusive jurisdiction to hear disputes on noncontractual liability of the EU based on the earlier decision in Bank Refah Kargaran 31 The Court suggested that Articles 24(1) TEU and 275 TFEU should be regarded as leges speciales in relation to the general jurisdiction on non-contractual liability of Articles 268 and 340 TFEU.32 This means that jurisdiction on the subject matter of the action for damages must be established first for the Court to have jurisdiction to hear the action for damages. Finally, the Court also rejected the argument that Article 298 TFEU, in conjunction with Article 41 of the Charter, would allow the Court to find jurisdiction.33
27. Order of the General Court of 10 November 2021, KS and KD v Council of the European Union and Others (T-771/20, ECLI:EU:T:2021:798).
28. Judgment of the Court of Justice, KS and KD, paras 65–69.
29. Judgment of the Court of Justice, KS and KD 70–71 and 77–81 with extensive reference to ECHR case-law on the interpretation of Article 6(1) and 13 ECHR.
30. Judgment of the Court of Justice, KS and KD, para 82.
31. Ibid., para 85.
32. Ibid., para 91.
33. Ibid., para 95.
So far so good, in the sense that the Court does not solve the problem of jurisdiction despite the fundamental rights arguments invoked. Yet, in a remarkable move of judicial acrobatics, the Court establishes jurisdiction by using the arguments rejected above while concealing that it does so. Specifically, after rejecting some parts of the complaints of the appeal, the Court goes on to examine other parts and explains that even if it cannot establish jurisdiction because a CFSP action does not fall within the situations covered by Article 24(1) TEU and Article 275 TFEU, then it is necessary to assess whether jurisdiction can be based on the fact that the actions or omissions at issue ‘are not directly related to the political or strategic choices’ made by the EU institutions in the context of the CFSP action.34 The Court even refers to past case law to make this groundbreaking evolution appear as a natural continuation. However, this new doctrine on ‘political or strategic choices’ (or ‘Political Question Doctrine’) does not seem to flow in any apparent way from the cases invoked, which are related to staff disputes and public procurement contracts in the context of CFSP missions.35 In any case, the Court of Justice tells us that if the acts or omissions are not related to ‘political or strategic choices’, then it does, in fact, have jurisdiction to assess them.36 It is in this crucial part of the ruling (paras. 115-117) that the Court of Justice builds a new test for extended jurisdiction in CFSP/CFSD matters by excluding the ‘Political Question Doctrine’ from its own jurisdiction.
This new doctrine on ‘political or strategic choices’ (or ‘Political Question Doctrine’) does not seem to flow in any apparent way from the cases invoked, which are related to staff disputes and public procurement contracts in the context of CFSP missions
34. Ibid., paras 115–116.
35. Judgment of 12 November 2015, Elitaliana v Eulex Kosovo (C-439/13 P, EU:C:2015:753), Judgment of 19 July 2016, H v Council and Others (C-455/14 P, EU:C:2016:569); Judgment of 25 June 2020, SatCen v KF (C-14/19 P,EU:C:2020:492).
36. Judgment of the Court of Justice, KS and KD, para 117.
Importantly, the Court of Justice adds that such a finding is based on a literal and contextual interpretation of the provisions of Article 24(1) TEU and Article 275 TFEU ‘as is apparent from paragraphs 62, 68 to 73, 77 to 80 and 91’.37 What is eloquently hidden in the way in which the Court structures its argumentation is precisely what is developed in the referred paragraphs and which the Court has already rejected in the first part of the appeal. That is, firstly, that Article 19 TEU demands a narrow interpretation of Article 24(1) and 275 TFEU (para. 62). Secondly, that the inclusion of the CFSP in the EU constitutional framework means that foundational principles of EU law apply therein, and in particular the respect for the rule of law and fundamental rights under Article 2 TEU and Article 19 TEU, and that it should be reconciled with Article 47 of the EU Charter, Articles 6 and 13 ECHR (paras. 68-73 also with reference to AG Opinion points 77, 79, 80). Thirdly, the Court must ensure that the interpretation it gives to Article 47 of the EU Charter corresponds to the level of protection provided by the ECHR and specifically by Articles 6(1) and 13 to which it corresponds (paras. 78–80). Fourthly, the limits of jurisdiction set in articles 24(1) TEU and 275 TFEU should be interpreted as leges speciales in relation to the exclusive jurisdiction of the Court on the non-contractual liability of the EU under Articles 268 and 340 TFEU (para. 91).
In essence, the Court of Justice openly rejects all the above arguments as a reason to extend jurisdiction invoked by KS and KD and then uses all these arguments to contextualise the interpretation of Article 275 TFEU and finds that, indeed, there is jurisdiction in CFSP in any decision that does not relate to ‘political or strategic choices’. By developing the so-called ‘Political Question Doctrine’, the Court becomes the ultimate arbiter of what a political or strategic choice in the context of CFSP is. Instead of extending its jurisdiction to cover specific types of actions as it did in the past (extending jurisdiction to hear claims on restrictive measures both in the context of preliminary ruling and in the context of an action for damages), the Court now has the power to establish jurisdiction in any area of the CFSP as long as the decision made is not political or strategic. This eventually solves the last remaining issue in the accession as the CJEU establishes a broader jurisdiction to hear matters related to CFSP.
In KS and KD, the Court of Justice had the possibility to develop its jurisdiction by following the logic used in its previous case law and developed by AG Cápeta in her opinion. Instead, and going counterintuitively against its previous logic, it has chosen to shape a ‘Political Question Doctrine’ in EU law to make sure that the CFSP matters are sometimes immune from jurisdiction when addressing ‘political or strategic choices.’38 In doing so, the Court of Justice addresses the fears of some of the Member States and particularly of the French Republic39 of seeing all types of CFSP matters/litigations ending up before the CJEU or the ECtHR. In that respect, it is not surprising that the Court of Justice explicitly mentions the argument of the French Republic used in the ECtHR Markovic, that certain acts of foreign policy fall outside the jurisdiction of the courts. For the Court of Justice in KS and KD, if a CFSP situation does not deal with a general or individual restrictive measure, then a distinction must be drawn between, on the one hand, acts of purely administrative management which are not inextricably linked to the CFSP and which have no political connotation and, on the other hand, acts the purpose of which is to contribute
37. Judgment of the Court of Justice, KS and KD, para 119.
38. See the contribution of Peter Van Elsuwege in this Weekend Edition, ‘Judicial Review in the Field of Common Foreign and Security Policy: The Implications of KS/KD and Neves 77 for EU Accession to the European Convention of Human Rights’.
39. Supra, Sect. III.
to the conduct, definition or implementation of the CFSP. This carving out of jurisdiction for acts involving ‘political or strategic choices’ at the European level is a necessary politico-judicial prerequisite to proceed with accession to the ECHR.
V. Conclusion:
This carving out of jurisdiction for acts involving ‘political or strategic choices’ at the European level is a necessary politicojudicial prerequisite to proceed with accession to the ECHR
The Light that Shines Bright through Interpretation
Unlike most cases of EU coordination where the main issue is the lack of political will, and in which cases the Court has more often than not stepped in and solved the matter, the complicated dynamics of accession to the ECHR have been primarily exacerbated by judicial reasoning.40 The Court was celebrated for bringing fundamental rights as general principles into the European Community’s legal order at a time when human rights concerns were considered secondary in relation to economic integration. The demand for greater political integration brought the issue of fundamental rights protection of the EU to the centre. While the autonomous EU law system has evolved, accountability gaps are ever-present and cannot be addressed internally.41 This is among the reasons why accession to the ECHR would have made a difference in shaping a coherent system of European fundamental rights protection.
In 2014, the Court suggested that despite the various arguments for the systematic interpretation with which it was presented by the Commission, it ‘has not yet had the opportunity to define the extent to which its jurisdiction is limited in CFSP matters as a result of those provisions’.42 Through a series of cases slowly developing over the majority of the past decade, the Court has, step by step, expanded the limits of its jurisdiction.43 The addition of KS and KD and Neves 77 last month and ten years after Opinion 2/13 completed a puzzle and resolved the last thorny issue in the Draft Accession Agreement, an issue that the Court itself had created. By examining these recent evolutions in the context of a thirty-year history, we argue that the Court has finally placed the potential accession to the ECHR in the spotlight. Finally, there seems to be hope for the new Draft Accession Agreement to satisfy the Luxembourg bench.44
40. Fritz W Scharpf, ‘The Asymmetry of European Integration, or Why the EU Cannot Be a “Social Market Economy”’ (2010) 8 SocioEconomic Review 211.
41. See Melanie Fink, Frontex and Human Rights: Responsibility in ‘Multi-Actor Situations’ under the ECHR and EU Public Liability Law, Oxford University Press, 2018; Melanie Fink, ‘The Action for Damages as a Fundamental Rights Remedy: Holding Frontex Liable’, (2020) 21 German Law Journal 532 See also Joyce de Conick, Shielding Frontex 2.0, The One with the Impossible Proof, Verfassungsblog 30 January 2024.
42. Opinion 2/13, para 251.
43. See Christian Breitler, Jurisdiction in CFSP Matters – Conquering the Gallic Village One Case at a Time?, European Law Blog, 29 July 2024.
44. See the contribution by Nicola Bergamaschi in this Weekend Edition, ‘The New Draft of the Union’s Accession Agreement to the European Convention on Human Rights: Fit for the Approval from the European Court of Justice?’.
Judicial Review in the Field of Common Foreign and Security Policy: The Implications of KS/KD and Neves 77 for EU Accession to the European Convention on Human Rights
Peter Van Elsuwege 1
I. Introduction
On 10 September 2024, the Grand Chamber of the Court of Justice issued two long-awaited judgments with direct relevance to the question of judicial review in the field of Common Foreign and Security Policy (CFSP).2 The latter is the last remaining obstacle towards a revised draft agreement on the accession of the European Union (EU) to the European Convention on Human Rights (ECHR). At the latest meeting of the ad hoc negotiating group, held in Strasbourg from 14 to 17 March 2023, it was decided that all the issues raised by the Court of Justice in Opinion 2/13 had been addressed, except the so-called ‘Basket 4’ concerning ‘the situation of EU acts in the area of Common Foreign and Security Policy that are excluded from the jurisdiction of the Court of Justice of the European Union’.3
1. Professor of European Union Law and Jean Monnet Chair at Ghent University, Ghent European Law Institute (GELI), Peter.VanElsuwege@ UGent.be.
2. Judgment of the Court of Justice of 10 September 2024, KS and KD v. Council (Joined Cases C-29/22 P and C-44/22 P, EU:C:2024:725); Judgment of the Court of Justice of 10 September 2024, Neves 77 Solutions (Case C-351/22, EU:C:2024:723).
3. Meeting report of the 18th meeting of the CDDH Ad Hoc Negotiation Group (“46+1”) on the accession of the European Union to the European Convention on Human Rights, 17 March 2023.
With respect to this issue, the representative of the EU informed the other negotiating parties that a resolution was to be found internally within the EU legal order. Whereas an amendment of the EU Treaties would be the most straightforward legal solution, the political appetite for such an endeavour is very low. As a consequence, all eyes are directed towards the Court of Justice of the European Union (CJEU). In a response to the European Commission’s argument that a systemic interpretation of the relevant EU Treaty provisions may lead to the conclusion that its jurisdiction is sufficiently broad to encompass any situation that could be covered by an application to the European Court of Human Rights (ECtHR), the Court of Justice observed in Opinion 2/13 that it had not yet had the opportunity to define the extent to which its jurisdiction in CFSP matters is limited.4 Since this Opinion, the issue of judicial control in the area of CFSP returned in a series of judgments.5
As has been argued elsewhere, the CJEU gradually developed a consistent line of case law, based on the horizontal application of general constitutional principles and mechanisms.6 In essence, this implies that the CFSP is an integral part of the post-Lisbon EU legal order and, as such, subject to the rule of law and respect for fundamental rights and values. Of course, this ‘integrationist logic’ cannot conceal the express limitations on the scope of the Court’s jurisdiction as defined in Articles 24(1) TEU and 275(1) TFEU. Hence, the core question is how far the CJEU’s ‘gap-filling role’ can be stretched in light of the principles of institutional balance and conferral. The judgments in KS and KD, on the one hand, and in Neves 77, on the other hand, provide another piece in this complex puzzle.
II. Common Foreign and Security Policy as an Integral Part of the EU Legal Order: The Crucial Role
of Article 23 TEU
Since Opinion 2/13, the Court of Justice has gradually clarified that its role in the field of CFSP is less limited than what a cursory reading of the Treaties may suggest. The key consideration is that a derogation from the rule of general jurisdiction, which Article 19 TEU confers on the EU Courts, must be interpreted narrowly.7 This is exactly the opposite of Advocate General Kokott’s position in her View in Opinion 2/13. She found that the EU Courts could ‘only highly exceptionally’ have jurisdiction in relation to the CFSP, namely with respect to the monitoring of compliance with the ‘non-affectation’ clause of Article 40 TEU and regarding actions for annulment from natural or legal persons against restrictive measures adopted by the Council.8
4. Opinion 2/13 of the Court of Justice of 18 December 2024, EU:C:2014:2454, para 251.
5. Most notably, Judgment of the Court of Justice of 24 June 2014, Parliament v. Council (Case C-658/11 EU:C:2014:2025); Judgment of the Court of Justice 12 November 2015, Elitaliana SpA v. Eulex Kosovo (Case C-439/13 P, EU:C:2015:753); Judgment of the Court of Justice of 19 July 2016, H v. Council (Case C-455/14 P, EU:C:2016:569); Judgment of the Court of Justice of 28 March 2017 , PJSC Rosneft Oil Company v. Her Majesty’s Treasury and Others, (Case C-72/15, EU:C:2017:236); Judgment of the Court of Justice of 25 June 2020, European Union Satellite Centre v. KF (Case C-14/19 P, EU:C:2020:492); Judgment of the Court of Justice of 6 October 2020, Bank Refah Kargaran v. Council and Commission (Case C-134/19 P, EU:C:2020:793).
6. Peter Van Elsuwege, ‘Judicial review and the Common Foreign and Security Policy: Limits to the gap-filling role of the Court of Justice’, 6 Common Market Law Review 58, 2021, pp. 1731-1760.
7. The Court for the first time referred to the narrow interpretation of the exceptions to its jurisdiction in CFSP matters in Case C-658/11, European Parliament v. Council (Pirate Transfer Agreement with Mauritius), EU:C:2014:2025, para 70.
8. View of Advocate General Kokott of 13 June 2014 in Opinion 2/13 (EU:C:2014:2475, point 84).
Since Opinion 2/13, the Court of Justice has gradually clarified that its role in the field of CFSP is less limited than what a cursory reading of the Treaties may suggest
A comparison between the view of Advocate General Kokott, on the one hand, and the post-Opinion 2/13 case law, on the other hand, reveals a fundamental difference of perspective. AG Kokott focused only on the specific CFSP provisions (Articles 24 (1) and 275 TFEU), leading to a narrow interpretation of the Court’s jurisdiction in this field. The Court of Justice, on the other hand, focused on the broader picture with the full integration of the CFSP in the EU legal order as one of the fundamental innovations of the Treaty of Lisbon. In this respect, the significance of Article 23 TEU cannot be underestimated. This provision forms the linchpin between the CFSP and the EU’s general principles and values. It expressly provides that the Union’s action in relation to the CFSP ‘shall be guided by the principles, shall pursue the objectives of, and be conducted in accordance with, the general provisions [on the Union’s external action]’.9 The EU’s external action, which encompasses both CFSP and non-CFSP external policies, is based on a single set of objectives – defined in Article 21 TEU – and is guided by the EU’s internal principles and values, as laid down in Article 2 TEU. Hence, the EU Treaty provisions relating to the CFSP cannot be separated from the general structure and logic of the EU’s constitutional architecture.
Applied to the specific question of judicial review in relation to the CFSP, it follows from the principle of effective judicial protection – as an inherent aspect of the rule of law – that the jurisdiction of the EU Courts is to be interpreted broadly and the exceptions narrowly. The recent judgments in KS and KD and Neves 77 proceed from this basic understanding to further clarify the role of the CJEU. In the case of KS and KD the core question concerned the EU Courts’ jurisdiction over an action for damages for alleged breaches of fundamental rights committed in the implementation of an EU rule of law mission. In Neves 77, the interpretation of a CFSP decision under the preliminary reference procedure was at stake.
III. Defining the Scope of the EU Courts Jurisdiction in the Field of CFSP: A Framework for Analysis
Taken together, the judgments in KS and KD and Neves 77 reveal the consolidation of an analytical framework for defining the scope of the EU Courts’ jurisdiction in the field of CFSP. In essence, this involves a two-step test. First, it is determined whether a situation falls within one of the situations provided for in the last sentence of the second subparagraph of Article 24(1) TEU and the second paragraph of Article 275 TFEU. These are the so-called ‘claw-back’ provisions expressly providing jurisdiction to the CJEU in relation to the monitoring of compliance with Article 40 TEU and the legality of CFSP decisions providing for restrictive measures against natural or
9. On the significance of Article 23 TEU, see also the Advocate General Wathelet’s Opinion of 31 May 2016 in Rosneft (Case C-72/15, EU:C:2016:381, point 66).
The judgments in KS and KD and Neves 77 reveal the consolidation of an analytical framework for defining the scope of the EU Courts’ jurisdiction in the field of CFSP
legal persons. Second, for situations not falling within the scope of those provisions, a ‘political questions’ test determines whether or not the CJEU has jurisdiction. Only acts or omissions that are directly related to political or strategic choices made by the institutions, bodies, offices, and agencies of the EU in the context of the CFSP fall within the jurisdictional ‘carve-out’ derogating from the general jurisdiction which Article 19 TEU confers on the CJEU to ensure that in the interpretation and application of the Treaties the law is observed.
In Neves 77, the Court of Justice further developed its broad interpretation of the claw-back provisions. Building upon Rosneft, which already asserted the Court’s jurisdiction to give preliminary rulings on the legality of CFSP decisions imposing restrictive measures against individuals or entities, it now addressed the interpretation of a measure of general scope (the prohibition of providing brokering services) within the framework of a preliminary reference procedure. Significantly, the Court did not follow the Opinion of Advocate General Ćapeta who had suggested that questions of interpretation fall outside the scope of the CJEU’s jurisdiction.10 To the contrary, it proceeded from a combined reading of various EU Treaty provisions to conclude that it can rule on such questions when the Council ought to adopt a Regulation implementing a CFSP decision imposing restrictive measures.11 This conclusion is based upon a broad understanding of the two grounds providing explicit jurisdiction in the field of CFSP. First, the task of monitoring compliance with the ‘mutual non-affection clause’ of Article 40 TEU is not subject to any particular limitations. The Court then considered that the absence of a Council Regulation to be adopted under Article 215(1) TFEU for CFSP decisions concerning the interruption or reduction of economic and financial relations with a third country affected its own prerogatives within the EU legal order. Second, the Court highlighted that the jurisdictional carve-out in relation to restrictive measures only concerns CFSP decisions but not the implementing regulations adopted under Article 215 TFEU. The combination of both considerations allowed the Court to close another gap in the judicial review of restrictive measures adopted in the context of the CFSP.
10. Advocate General Ćapeta’s Opinion of 23 November 2023 in Neves 77 Solutions, point 76.
11. Judgment of the Court of Justice, Neves 77 Solutions, para 53.
In KS/KD, the Court of Justice was confronted with a situation that clearly did not fall within the scope of the claw-back provisions. For the first time, the Court was asked to rule on an action for damages for alleged human rights violations committed in the implementation of an EU rule of law mission.12 Proceeding from the principles of conferral and institutional balance, the Court rejected the suggestion of AG Ćapeta that all actions involving fundamental rights questions necessarily fall within the scope of CJEU jurisdiction.13 In order to decide whether or not a certain act or omission is subject to the judicial review of the CJEU, the Court introduced an explicit political questions test. Only when there is a direct link with ‘political or strategic choices’ does the CJEU have to declare that it lacks jurisdiction.14 The core question, of course, is how the borderline between political or strategic choices, on the one hand, and other choices can be drawn in practice. The only option appears to be a case-by-case analysis of each act or omission falling within the scope of the CFSP. Accordingly, the Court found that decisions about the allocation of resources made available to a CFSP mission and the removal of the executive mandate of such a mission are directly related to strategic and policy choices whereas decisions about the choice of personnel, the (lack of) legal aid in proceedings before a review panel, the (lack of) enforcement powers conferred to such a panel and the failure to take remedial action fall within the scope of CJEU jurisdiction.
IV. Squaring the Circle: Revisiting Opinion 2/13 and EU Accession to the ECHR
The judgments in KS/KD and Neves 77 provide another prime example of the Court’s ‘gap-filling role’. Proceeding from a teleological interpretation of the Treaties and based upon a combined reading of various provisions, the Court avoids in so far as possible the existence of lacunae to ensure a system of effective judicial protection within the EU legal order. This approach is not without criticism, mainly because the Court itself is also due to respect the limits of its own competences under the principle of conferral.15 Be that as it may, the Court’s narrow interpretation of the ‘carve-out’ clause in relation to the CFSP in KS/KD and its broad interpretation of the ‘clawback’ provision in Neves 77 does not come as a surprise. On the contrary, it is consistent with the entire line of case law since Opinion 2/13. This, of course, triggers the question of to what extent the limits to the EU Courts’ jurisdiction in relation to the CFSP are still to be considered as an obstacle towards EU accession to the ECHR.
The judgments in KS/ KD and Neves 77 provide another prime example of the Court’s ‘gap-filling role’
12. This is to be distinguished from the situation in Bank Refah Kargaran, where the Court had found that an action for damages in relation to CFSP decisions pertaining to individual restrictive measures falls within the scope of the ‘claw back’ provision of Article 275 TFEU.
13. Advocate General Ćapeta’s Opinion of 23 November 2023 in KS and KD, para 155.
14. Judgment of the Court of Justice, KS and KD, para 117.
15. Thomas Verellen, ‘A Political Questions Doctrine for the CFSP’, Verfassungsblog, 24 September 2024.
The Court’s judgments do not give any definite answer but include several important considerations. In particular, it is highlighted that the jurisdictional carve-out in CFSP matters is not necessarily problematic from the perspective of the ECHR. In KS/KD, the Court of Justice observed that the limitation of its jurisdiction in CFSP matters can be reconciled both with Article 47 of the Charter and with Articles 6 and 13 ECHR.16 Of particular significance is the reference to the case law of the ECtHR in Markovic and Others v Italy and H.F. and Others v. France, where it was found that constitutional limitations of the jurisdiction of courts with respect to acts that are inherently connected to a State’s international relations do not infringe Article 6 ECHR.17 Arguably, the same logic behind the non-intervention of the ECtHR in the foreign affairs decisions of States applies mutatis mutandis with respect to the jurisdictional carve-out for CFSP matters in the EU legal order. In essence, the latter is interpreted as nothing more than a codified ‘political questions doctrine’, which can also be found in the constitutional order of several States.
A decade after Opinion 2/13, it appears that this question can again be brought to the attention of the Court of Justice in a new opinion procedure under Article 218(11) TFEU
The post-Opinion 2/13 case law of the Court of Justice already provides for quite a long list of situations where a full judicial review is guaranteed in areas that are connected to the field of CFSP. This is particularly the case with respect to restrictive measures, as a special category of CFSP acts affecting the rights of individuals. The political questions test included in KS/KD further confines the potential list of situations falling outside the jurisdiction of the CJEU to such an extent that it is not directly obvious under which circumstances the ECtHR would be empowered to rule on the compatibility with the ECHR where the CJEU would be excluded from performing a review in light of fundamental rights.18 A decade after Opinion 2/13, it appears that this question can again be brought to the attention of the Court of Justice in a new opinion procedure under Article 218(11) TFEU with respect to the revised draft agreement on EU accession to the ECHR.19
16. Judgment of the Court of Justice, KS and KD, para 70.
17. Ibid., para 78.
18. See also: Daniel Sarmiento and Sara Iglesias Sánchez, ‘KS and Neves 77: Paving the Way to the EU’s Accession to the ECHR’, EU Law Live, 12 September 2024; Jasper Krommendijk, ‘One step closer after KS and KD: EU accession to the ECHR’, REALaw.blog, 1 October 2024.
19. See the contribution by Nicola Bergamaschi in this Weekend Edition, ‘The New Draft of the Union’s Accession Agreement to the European Convention on Human Rights: Fit for the Approval from the European Court of Justice?’.
The New Draft of the Union’s Accession Agreement to the European Convention on Human Rights: Fit for the Approval from the European Court of Justice?
Nicola Bergamaschi 1
I. Introduction
In March 2023, a revised draft of the European Union (EU) accession agreement to the European Convention on Human Rights (ECHR) was finalised by the ad hoc negotiation group ‘46+1’ (hereafter, Group ‘46+1’).2 Two months later, at the Reykjavík Summit, the Heads of State and Government of the Council of Europe’s Member States gave their ‘welcome’ to the provisional agreement.3 Can we assume that the troubled road towards the Union’s accession to the ECHR is finally nearing its end?
The closing of the negotiations certainly represents an ‘essential step’ in this sense.4 Anyway, the answer to the above question depends, inter alia, on the compatibility of the new accession agreement with the Treaties and the specific characteristics of the EU legal order. In fact, one could reasonably expect the Court of Justice to be asked to give its opinion under Art. 218(11) TFEU on the negotiated text before the conclusion of the agreement on the part of the EU. It would be the third Court of Justice opinion concerning the EU’s accession to the Convention. As well known, the two previous accession attempts failed, in 1996 and 2014, on the grounds of Opinion 2/94 and Opinion 2/13. 5 The latter, in particular, has set a high threshold to be met for the accession agreement to comply with EU law and its autonomy. Five years after its delivery, Group ‘46+1’ was mandated to overcome the flaws of the last version of the draft accession agreement (the 2013 version), which meant those identified in the rejection of the draft by the Court of Justice.
1. Post-Doctoral Research Fellow in European Union Law at the University of Parma, Department of Law, Politics and International Studies, nicola.bergamaschi@unipr.it.
2. Interim Report to the Committee of Ministers, for information, on the negotiations on the accession of the European Union to the European Convention on Human Rights, including the revised draft accession instruments in appendix, 4 April 2023. For a comment, see Felix Ronkes Agerbeek, ‘EU Accession to the European Convention on Human Rights: An EU Negotiator’s Perspective’, EU Law Live Weekend Edition, 22 June 2024; Paul Gragl, ‘The New Draft Agreement on the EU Accession to the ECHR: Overcoming Luxembourg’s Threshold’, European Convention on Human Rights Law Review, 2024, pp. 1–26.
3. Council of Europe, ‘Reykjavík Declaration’, 16–17 May 2023, p. 8.
4. Felix Ronkes Agerbeek, cit., p. 3.
5. Opinion 2/94 of the Court of Justice of 28 March 1996, ECLI:EU:C:1996:140; Opinion 2/13 of the Court of Justice of 18 December 2024, EU:C:2014:2454.
The task was not easy, as the problems to be fixed were many and delicate. In its last report, Group ‘46+1’ concluded that ‘it had resolved all of the issues that it was currently expected to address’,6 but with a major caveat. The new draft agreement does not deal with one of the thorniest obstacles to the accession raised by Opinion 2/13, concerning the scope of the CJEU’s jurisdiction in the field of Common Foreign and Security Policy (CFSP). Group ‘46+1’ considered instead leaving it to the EU to address such a complicated matter at its internal level. As the recent Court of Justice judgments may (perhaps) have untied the CFSP knot,7 it thus remains to be seen whether the Council of Europe’s Steering Committee for Human Rights (CDDH) will consider the draft accession agreement ready to move to the conclusion phase.8 If this were the case, the request for the Court of Justice’s opinion would not be long in following.
II. Opinion 2/13 as a Guide: The Content of the New Draft Accession Agreement
Group ‘46+1’ organised its works on a thematic basis. It listed all the issues which made the previous draft agreement incompatible with EU law according to Opinion 2/13 and divided them into four ‘baskets’, as follows:
• Basket 1 ‘EU-specific mechanisms of the procedure before the European Court of Human Rights [ECtHR]’: the reference is to the co-respondent and the prior-involvement mechanisms, specifically designed in the 2013 draft agreement to reconcile the ECHR jurisdictional rules with the Union’s specific characteristics and the prerogatives of the CJEU.
• Basket 2 ‘Operation of inter-party applications (Article 33 of the Convention) and of references for an advisory opinion (Protocol No. 16) in relation to EU member states’: it regards three different issues relating to the Member States’s participation in the ECHR: the risk of an inter-party dispute among the EU and the Member States, the (in)consistency between Article 33 ECHR and Article 344 TFEU and the coordination between the advisory opinion under Protocol No. 16 of the ECHR and the preliminary ruling procedure under Article 267 TFEU.
• Basket 3 ‘The principle of mutual trust between the EU member states’: it is about the coexistence of the mutual trust principle under EU law and the human rights scrutiny by the ECtHR.
• Basket 4 ‘EU acts in the area of the Common Foreign and Security Policy’: aAs anticipated, this basket remained empty, as the new draft does not cover this issue.
In addition, outside these baskets, the negotiations also dealt with a further point of Opinion 2/13, namely that concerning the interplay between Article 53 of the Charter of Fundamental Rights (CFR) and Article 53 ECHR in the light of the Court of Justice’s Melloni doctrine.
6. Meeting report of the 18th meeting of the CDDH Ad Hoc Negotiation Group (“46+1”) on the accession of the European Union to the European Convention on Human Rights, 17 March 2023, p. 3.
7. See Daniel Sarmiento and Sara Iglesias Sánchez, ‘Insight: “KS and Neves 77: Paving the Way to the EU’s Accession to the ECHR”’, in EU Law Live, 12 September 2024. See also the contributions by Alexini Loza, Xavier Groussot, and Peter Van Elsuwege in this Weekend Edition.
8. See Interim Report to the Committee of Ministers, cit., p. 2.
Except for Basket 4, the final text contains specific clauses covering all the Baskets’ issues. So, in brief, the corespondent and prior involvement mechanisms (already present in the 2013 draft) are proposed in a refined version (Article 3), inter-party disputes are prevented among the EU and the Member States and among these latter insofar as they ‘concern the interpretation or the application of EU law’ (Article 4), the advisory opinion under Protocol No. 16 would require a preliminary ruling from the CJEU (Article 5), the application of the mutual trust principle ‘shall not’ be affected by the accession (Article 6), and Article 53 ECHR is not supposed to interfere with the Melloni doctrine (Article 1(9)).
A detailed analysis of the suitability of all these clauses to pass the Court of Justice’s assessment in a future opinion goes beyond the intention of this work.9 All in all, the new draft seems to address the Court of Justice’s concerns, incorporating the observations made in Opinion 2/13 and fixing most of the critical points of the 2013 version. Yet, as will be shown below, uncertainty remains for two aspects concerning the draft clauses related to Protocol No. 16 (Basket 2) and the mutual trust principle (Basket 3).10
III. EU Law as a Matter of EU Law
One of the main innovations of the new draft relates to a very sensitive point from the perspective of the autonomy of EU law. The problem originates in the introduction of ad hoc mechanisms or other rules envisaged to conciliate the jurisdiction of ECtHR with the specific characteristics of the EU legal order, namely those in the context of Baskets 1 and 2. These instruments are needed for the EU to accede to the ECHR, but they could also be problematic for EU law’s autonomy. Even if they serve different purposes and cover various situations, all of them are triggered in cases where the ECtHR is (or would be) asked to rule over issues of EU law or to take EU law otherwise into consideration in its scrutiny. So, the first step for these instruments to apply is a decision determining whether EU law is relevant in a case before the ECtHR. But who should be in charge to decide? In the view of the Court of Justice,11 the assessment of the EU law nature of an issue brought before the ECtHR corresponds to a matter of EU law. Accordingly, the autonomy of EU law prevents it from being made by a judge who sits outside the EU’s internal judicial system.
9. See Paul Gragl, cit.
The Court of Justice could find the new draft agreement to be at odds with the autonomy of EU law
10. See Tobias Lock, ‘Op-Ed: “Third time lucky? The revised agreement on the EU’s accession to the ECHR”’, in EU Law Live, 19 April 2023.
11. Opinion 2/13, paras 221–225 and 229–234.
Against this background, the new draft agreement presents specific clauses conferring to the EU the prerogative to internally assess whether the requirements for the activation of the mentioned instruments are met. In the cases of the co-respondent and the prior involvement mechanisms,12 the draft explanatory report to the accession agreement refers to a ‘determinative and authoritative’ finding by part of the EU about the presence of the conditions and the necessity for their application.13 Similarly, in the context of the mechanism excluding the ECtHR jurisdiction on inter-party disputes among the EU Member States for cases involving the interpretation and application of EU law under Article 344 TFEU, the occurrence of such a situation is to be ultimately ascertained by the EU itself.14
Curiously, Article 5 of the new draft agreement, regulating the post-accession functioning of the advisory opinion under Protocol No. 16 of the ECHR, does not foresee a determination of this kind by the EU.15 This probably should have been the case.16 The provision prevents the EU Member States from obtaining an advisory opinion from the ECtHR ‘if the question falls within the field of application of European Union law’. This formulation may be enough to prevent a conflict between Protocol No. 16 and the preliminary reference procedure after the EU accession, as it avoids the possibility that a Member State’s judge submits a question concerning EU law to Strasbourg instead of Luxembourg. Yet, it does not clarify who is entitled to decide whether the question under examination is an EU law issue. For this reason, the Court of Justice could find the new draft agreement to be at odds with the autonomy of EU law. In this case, the parties could consider adding an appropriate clause in this part of the draft accession agreement.
The Court of Justice could find the new draft agreement to be at odds with the autonomy of EU law
12. Article 3(5) and (6) of the draft accession agreement.
13. Interim Report to the Committee of Ministers, cit., Appendix 5, paras 61 and 76.
14. Article 4(4) of the draft accession agreement.
15. On this topic, see Ilaria Anrò and Bruno Nascimbene, ‘The devil is in the details: does the end of Protocol n° 16 to the ECHR lie in the wrinkles of the EU accession to the ECHR process?’, in Eurojus, 1 February 2021.
16. See Jean-Paul Jacqué, ‘What next after Opinion 2/13 of the Court of Justice on the accession of the EU to the ECHR?’, Policy Department for Citizens’ Rights and Constitutional Affairs, 2016, p. 34. For a different view, see Paul Gragl, cit., pp. 15–16.
IV. (Mutual)
Trust Issues
The issue concerning the compatibility between the principle of mutual trust and the accession of the Union to the ECHR deserves specific attention. It was expected to be one of the most difficult problems for the negotiations and, indeed, the solution envisaged by the new draft agreement does not appear so watertight.
The problem related to mutual trust lies in the presumption that all the Member States equally respect fundamental rights (since they share the funding values of Article 2 TEU), allowing the establishment of an Area of Freedom, Security, and Justice within the Union and informing the cooperation instruments among the Member States based on mutual recognition,17 such as the European Arrest Warrant (EAW). Accordingly, the recourse by EU Member States’ national authorities to cooperation instruments inspired by mutual trust tolerates a certain degree of risk of fundamental rights breaches at the individual level on the part of other Member States.18 The same conduct could instead result in a violation of the ECHR.
In Opinion 2/13, the Court of Justice concluded that the 2013 draft agreement failed to give due consideration to the principle, compromising its fundamental role within the EU constitutional framework.19 In response, the new draft agreement tries to strike a balance between mutual trust and human rights protection: on the one hand, the accession ‘shall not affect the application of the principle of mutual trust’; on the other hand, the protection of human rights under the Convention ‘shall be ensured’ in this context too.20
Whether such a clause is enough to ensure peaceful coexistence between the principle of mutual trust and the ECHR after the accession cannot be taken for granted. The answer revolves around the question of the limits of the mutual trust presumption.21 The point is to what extent the presumption can – or shall – be set aside in protecting fundamental rights. In this regard, the draft agreement does not provide a definite answer. It is thus necessary to look at the two Courts’ approaches. Since the times of Opinion 2/13, the situation has evolved. On the one side, the Luxembourg case law consistently confirmed that mutual trust is not absolute nor ‘blind’ to fundamental rights protection.22 On the contrary, the CJEU defined case by case the interaction between mutual trust and fundamental rights, also following the ECtHR approach.23 On the other side, the Strasbourg Court acknowledged the importance of the principle for the EU legal order.24 Yet, the two Courts do not completely converge on the test to derogate from mutual trust on human/fundamental rights grounds. While the ECtHR refers to a ‘manifest deficiency’ of human rights protection, the CJEU developed a two-pronged approach (the Aranyosi and Căldăraru
17. Opinion 2/13, paras 191–192.
18. Advocate General Ćapeta’s Opinion of 13 July 2023 in GN (C-261/22, ECLI:EU:C:2023:582, paras 29–31).
19. Opinion 2/13, paras 193–195.
20. Article 6 of the draft accession agreement.
21. Ronkes Agerbeek, cit., p. 4.
22. Koen Lenaerts, ‘La vie après l’avis: Exploring the principle of mutual (yet not blind) trust’, 54 Common Market Law Review 3, 2017, pp. 805–840.
23. Eugene Regan, ‘The role of the principles of mutual trust and mutual recognition in EU law’, Il Diritto dell’Unione Europea 2, 2018, pp. 231-247, pp. 244–245.
24. Judgment of the ECtHR of 23 May 2016, Avotiņš v. Latvia (Application no. 17502/07, CE:ECHR:2016:0523JUD001750207, para 113).
test), especially in the context of the EAW.25 As known, the CJEU’s test consists of two steps of the assessment of the fundamental rights violation risk by the executing Member State’s authority, concerning both the systemic or generalised situation of the issuing Member State and the specific condition of the individual at stake. The necessity to fulfil the first part of the test, in particular, may lead to an actual violation of the person’s fundamental rights if the presence of a risk at the individual level is not accompanied by systemic or generalised deficiencies in the issuing Member State.26
The
current
state of affairs cannot thus ensure perfect compliance of the mutual trust principle with the ECtHR human rights protection standards
The current state of affairs cannot thus ensure perfect compliance of the mutual trust principle with the ECtHR human rights protection standards.27 In any case, this does not necessarily imply the impracticability of the EU’s accession to the Convention. As observed by Lock, the above-mentioned clause should be read together with the prior involvement mechanism, which is also part of the draft agreement.28 This latter (basically) allows the CJEU to express itself on an EU law issue, on which it has not yet had the occasion to do so, before the ECtHR does. As a result, after the accession, the CJEU would always have the possibility to expose its view on the modalities of the mutual trust application in a given case before the same point is addressed in Strasbourg. Although the CJEU’s findings in this context are not binding for the ECtHR, they can be a precious tool for the latter to avoid contradictions with the former, in a cooperative attitude among the two courts.29 In conclusion, while the new draft accession agreement is not per se decisive in resolving the possible conflicts between the mutual trust principle and the human rights protection under the Convention, the accession process can succeed if the courts place trust in each other. In this sense, the ECtHR should trust the overall degree of fundamental rights protection within the EU legal framework, while the CJEU should trust the future ECtHR disposition to have mutual trust issues be dealt with in Luxembourg. The outcome of a future Court of Justice opinion on the new draft agreement may depend on this.
25. Judgment of the Court of Justice of 5 April 2016, Aranyosi and Căldăraru, (C-404/15, ECLI:EU:C:2016:198, paras 89–94).
26. Judgment of the Court of Justice of 3 January 2023, Puig Gordi and Others (C-158/21, ECLI:EU:C:2023:57, para 111).
27. Suggesting an innovative approach by the CJEU, Cecilia Rizcallah, ‘Mutual Trust under the European Arrest Warrant and Ongoing Challenges for Fundamental Rights’, Weekend Edition, 17 February 2023.
28. Article 3(6) of the draft accession agreement.
29. See Antonio Tizzano, ‘European Courts and the Protection of Fundamental Rights’, in Gunnar Selvik et al. (eds.), The Art of Judicial Reasoning, Springer, 2019, pp. 23–32, pp. 27–30.