Steve Peers provides an explanation of Opinion 2/13 in his article The EU’s Accession to the ECHR: The Dream Becomes a Nightmare, published in the German Law Journal recently (Vol. 16, pp. 213-222), and he is very critical to such a ruling. Peers underlined certain problematic aspects of the EU’s accession to the ECHR. He is of the view that the judgment is indeed a complex one that gives rise to different legal questions.
In 1996, the European Court of Justice (hereafter ‘CJEU’) stated in its Opinion 2/94 that the European Union could not accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). Only a treaty amendment could overturn this judgment. When the Lisbon Treaty entered into force in 2009, Article 6(2) in the Treaty of the European Union (TEU) provided that the EU shall accede to the ECHR. Protocol 8 as well as a Declaration were added to the Lisbon Treaty, which respectively regulated some aspects of the accession and required the accession to comply with EU law.
These Treaty provisions are not sufficient in order for the EU to become a contracting party to the ECHR. In order to accede to the ECHR, the EU needs to negotiate with the Council of Europe for an accession treaty. Such an accession treaty was finalized between the negotiators in 2013. In 2014, the CJEU gave its opinion on the EUs accession to the ECHR, specifically whether the Draft Accession Agreement (hereafter ‘DAA’) was compatible with EU law as provided in their Opinion 2/13.
The CJEU concluded that the Draft agreement was not in line with EU law, based on five main reasons. The first one because the DAA did not consider special characteristics of EU law in three aspects. First, the agreement did not hinder the possibility for Member States to have higher human rights standards than those provided in the EU Charter of Fundamental Rights. This despite the fact that the CJEU has ruled in case Melloni that Member States cannot have higher standards of human rights than EU law when the EU has fully harmonized the law and when EU legislation is compatible with the ECHR and the EU Charter of Fundamental Rights [see p. 215 in Peer’s article]. The second aspect was that the DAA did not provide for “mutual trust” in Justice and Home Affairs, and lastly, the agreement did not rule out the possibility for national courts to refer questions to the European Court of Human Rights as provided by Protocol 16 of the ECHR. This possibility would have the effect that national courts would ask the ECtHR to rule on EU law matters before the CJEU was asked, which would be a circumvention of the EU’s preliminary ruling procedure [see p. 216].
The second main reason was that the draft agreement violated Article 344 TFEU, because it provided the possibility for the ECtHR to settle disputes between Member States instead of the CJEU. Thirdly, the agreement established a co-respondent system that was incompatible with EU law, because the system created a procedure where the EU and Member States could be parties before the ECtHR. This system would cause several problems. The main one was that the ECtHR would interpret EU law in order to assess the admissibility of the case and to allocate responsibility between the EU and the Member States for breaching the ECHR. This would be incompatible with EU law, since only the CJEU can interpret and rule on matters of EU law. The fourth main reason concerned the prior involvement of the CJEU before the ECtHR ruled on EU law issues. First, the rules did not reserve the power for the EU to rule whether CJEU already had dealt with an issue. Second, the rules did not permit the CJEU to rule on the interpretation of EU law. The fifth main reason consisted of that the rules on common and foreign security policy (CFSP) were incompatible with EU law as well, because non-EU courts cannot exeercise the power of judicial review over EU acts. However, not even the CJEU has such a jurisdiction, because CFSP matters cannot be subject to trial by the EU courts.
Peers stated that these five main reasons made it evident that the EU could not accede to the ECHR [see p. 217 Peer’s article]. The CJEU therefore proposed ten amendments in order for the draft agreement to be compatible with EU law. However, even though these amendments could be achieved, some more easily than others, it would still require negotiations by all 47 Member States of the Council of Europe (CoE). If the revised version were agreed upon, it would in turn require ratification by all States in order to enter into force. Furthermore, it would require an agreement by unanimity by the Council and be ratified by the EU Parliament [see p. 218]. Such a renegotiation process would probably have little prospect, since the 2013 accession treaty was the result of a difficult compromise.
It is clear that the CJEU did not want to accede to the ECHR under those conditions that were agreed upon between the negotiators, simply because the agreement was incompatible with EU law. On the other hand, it is evident that the CoE cannot either accept the amendments proposed by the CJEU, since they would be disadvantageous for the ECtHR and the protection of human rights. Peers stated that the proposed amendments would have the effect of promoting the EU, since the objections insisted on the primacy of EU courts over the ECtHR, and priority of EU law before the ECHR. Consequently, it seems that the accession treaty cannot be performed without harming the interests and the fundamentals of the EU and the Convention system respectively. The clash between EU law components and the protection of human rights is apparent.
Peers therefore questioned whether the accession process should be continued on the basis of Opinion 2/13. First of all, it is important to recognize that all the proposed objections were probably rooted in an attempt to ensure that issues within EU law would remain within the jurisdiction of the EU, and that the ECtHR would rule on matters relating to the ECHR. It is, however, almost impossible to separate these issues since they are interrelated to each other. This is especially seen in CFSP matters: The CJEU proposed to curtail the role of the ECtHR to rule on matters of CFSP. Peers noted that this objection was highly problematic in the sense that human rights violations occur in foreign policy as well, such as violations of the right to life, arbitrary detention, human trafficking, etc. Matters of CFSP cannot be subject to judicial review by the EU courts. The CJEU has no authority to rule on such matters, at the same time it objected to the fact that the Strasbourg court would have such judicial review powers.
Even though the EU strived for a clear division of which court has jurisdiction to rule on certain matters, Peers was of the view that the objection clearly went beyond the aim pursued by the EU. This objection was rather a clear protest where the CJEU refused to accept judicial power of the ECtHR.
Peers seemed to understand that both the EU system and the Strasbourg court would want to protect their own interests. However, the amendments recommended by the CJEU seemed to cross the line, based on the major consequences of such a ruling. If no international court or tribunal could rule on CFSP matters, it would be the victims of serious human rights violations to pay the price, simply because of the CJEU’s reluctance to allow the ECtHR to have judicial power. Moreover, the CJEU proposed that their accession to the ECHR should not affect the rule of mutual trust in Justice and Home Affairs (JHA). This objection clearly indicates that the EU considers that its innovation of JHA matters should prevail over human rights. Peers held that the objections proposed by the CJEU stems from the idea that the ECHR should adapt to EU law, not the other way around. But these amendments would in fact be a violation of EU law itself, because the TEU provides no primacy of EU law, mutual trust in JHA matters or to curtail jurisdiction for any international court on CFSP matters.
Peers seemed to support the EU’s accession to the ECHR, since it would ensure effective control over the EU in relation to violations of human rights. But an accession under those conditions proposed by the CJEU would negatively affect the protection of human rights. Consequently, Peers was in favor of an accession to the ECHR, but not under those conditions laid down by the EU. This approach is hardly surprising, based on the major consequences that would follow if the amendments were agreed upon. However, it is important to keep in mind the underlying reasons for acceding to the ECHR. The accession to the ECHR is rooted in the thought of creating a single, comprehensive and coherent legal framework in order to protect human rights across the continent. For instance, individuals cannot, at the moment, challenge EU laws and practices before the ECtHR in the same way that they can bring national laws and practices before that Court. Therefore, accession to the ECHR would be a welcomed feature in the pursuit of human rights protection.
However, Opinion 2/13 is indeed a complex judgment that has given rise to multiple legal questions as stated by Peers. The CJEU has indeed found a number of obstacles for a potential accession. What seems to be the main issue is that the Court does not want to bow down to the ECtHR; it does not want to lose its sovereignty. But maybe a part of the resistance might also find its origin in the notion that the EU does not want to be controlled by human rights. The President of the CJEU stated in 2014 that the CJEU is not a Human Rights Court, it is the Supreme Court of the EU. Furthermore, the UK, one of the Member States that play an essential role within the EU, has been welcoming towards the resistance from the EU to access the ECHR. David Cameron has tried to make sure that the UK is exempted from judgments of the ECtHR. It is thus evident that not every state is interested in acceding, and it makes the decision of the CJEU less surprising.
It seems evident that even though the EU might seem concerned about human rights in general, it is definitely more concerned with the sovereignty of its own Court. The fact that accession has been discussed for over thirty years and is yet to actually happen is indeed indicative of the EU’s general unsuitability to be a contracting party to the ECHR. Further, the UK’s position as a strong Member State and a strong opponent of accession does perhaps put some pressure on the CJEU and the EU as well. Overall, it is not completely unsurprising that the CJEU would take the route it did. Peers explains that the main problem with the analysis of the Court is the will to protect the “basic components of EU law” instead of protecting human rights. He is likely to be correct in that aspect, as the Court’s biggest fear seems to be losing its sovereignty.
by Sara Carlbom, Marcus Johansson, Emilia Pettersson
 Note that this article is based on Steve Peer’s blog post: The CJEU and the EU’s Accession to the ECHR: A Clear and Present Danger to Human Rights Protection, EU LAW ANALYSIS <http://eulawanalysis.blogspot.co.uk/2014/12/the-cjeu-and-eus-accession-to-echr.html>
 EurActiv Network, Court of Justice rejects draft agreement of EU accession to ECHR <http://www.euractiv.com/sections/eu-priorities-2020/court-justice-rejects-draft-agreement-eu-accession-echr-310983> accessed 2015-04-21.
 UK Constitutional Law Association, Sionaidh Douglas-Scott: Opinion 2/13 on EU accession to the ECHR: a Christmas bombshell from the European Court of Justice http://ukconstitutionallaw.org/2014/12/24/sionaidh-douglas-scott-opinion-213-on-eu-accession-to-the-echr-a-christmas-bombshell-from-the-european-court-of-justice/ accessed 2015-04-21.