Comments on The Fallibility of The European Union Accession Project
By Kanad Bagchi*
Opinion 2/13 received considerable criticism from the academic world both in terms of its uncompromising stance and inaccurate reasoning. That apart, literature depicting the Court of Justice of the European Union (“ECJ”/ “Court”) as a power hungry and haughty institution received a renewed boost along with increasing skepticism concerning the current status quo of the relationship between Europe’s twin courts. In the melancholy that followed, it is surprising to notice the near absence of judicial deference to a constitutional court’s onerous task of striking a balance between constitutional vigil and progressive latitude. The purpose of this article is not to assuage the ECJ of all its criticisms, but to equitably measure the feasibility of an alternative outcome. In this regard, the opinion of Advocate General (“AG”) Juliane Kokott presents a rather nuanced approach towards all but two objections advanced by the ECJ on the Draft Accession Agreement (“Accession Agreement”), which notably has eluded critical appraisal. In what follows, the author briefly addresses the commonality of the issues that drew the attention of both the AG and the ECJ, partly to elucidate the unassailable position of the Court and partly to substantiate his own assessment of the opinion.
I. Exclusive Jurisdiction of The ECJ – A Constitutional Imperative
The Court reckoned that the inevitability of overlapping jurisdiction in the interpretation and application of the Treaties, between the ECJ and European Court of Human Rights (“ECtHR”) post accession, posed a real danger to the autonomy of the European Union (“EU”) legal order which Art. 344 TFEU is designed to protect. In response to that, Art. 5 of the Accession Agreement, which dispensed with EU member states (“MS”) obligation under Art. 55 European Convention of Human Rights (“ECHR”/ “Convention”), in the opinion of the Court, was insufficient to abstain MS from instituting interstate disputes before ECtHR on matters of interpretation of Convention falling within the ambit of EU law. In the Court’s own words, only the “…express exclusion of the ECHR’s jurisdiction under Article 33 of the ECHR…” is to be regarded as compatible with Art. 344 TFEU, and in this regard the Court was not without precedent. Although acknowledging the clear “…tension between the Member States’ obligation under Article 344 TFEU…and the obligation imposed by Article 55 ECHR …”, the AG nonetheless, found adequate protection within the Treaty on the Functioning of the European Union (“TFEU”), more particularly Arts 258 to 260 thereof. She concluded that infringement proceedings for a breach of Art. 344 along with interim measures under Art. 279 were “sufficient to preserve the practical effectiveness of Art. 344”. In this manner, the AG presented an elegant retreat from closer judicial scrutiny of the Accession Agreement and delineated an alternative that one might have expected the Court to stride.However, it is argued that such an approach would have been ad-hoc and precarious at best.
Art. 5 of the Accession Agreement undoubtedly confer considerable discretion on the MS and European Union to take recourse to Art. 33 of the Convention bypassing the authority of ECJ in matters concerning violations of the Convention in the realm of EU law. There is reason to apprehend that in the face of competing jurisdictions of the ECtHR and ECJ, a MS would find itself more inclined to approach the former as against the latter. Although the reputation of the ECtHR as a foremost human rights court has only bolstered over the years, serious concerns nonetheless remain as regards both the direct effect (or the lack of it) and the execution of its decisions by the Committee of Ministers. In addition to that, MS exercise enormous flexibility in their obligation to give final effect to the decisions of the ECtHR, which are invariably declaratory in their content. In comparison, the decisions of the ECJ have direct effects “…creating rights which national courts must protect”, disregarding, if the situation so demands, their own national law. Thus the national courts of EU MS are the true harbingers of EU law as interpreted by the ECJ and ensure its enforcement at the level closest to the state administration. Accordingly, both the authority and legitimacy of ECJ jurisprudence passes through the porous borders of EU MS and seamlessly blends into their legal systems, thereby fashioning one single homogeneous body of law and from which there is hardly any escape.
In light of the above, AG’s insistence that infringement proceedings under the Treaty is sufficient to avert such danger is inadequate to address a situation where neither the European Commission nor a MS takes the initiative to institute proceedings against a breach of Art. 344 TFEU. There is no obligation on the European Commission flowing from Art. 258 to pursue every Treaty infringement and neither is it inconceivable that MS acting in concert, would stray away from exercising their rights under Art. 259. Under such circumstances, the ECJ rightfully interpreted Art. 344 TFEU in the light of its letter and spirit to conclude the fact that “…Member States or the EU are able to submit an application to the ECtHR is liable in itself to undermine the objective of Article 344 TFEU…”. It was both necessary and expedient for the Court to insist on adequate safeguard within the Agreement itself, so as to preempt a possible breach of Art. 344 TFEU.
II. Co-Respondent Mechanism and Prior Involvement of the ECJ – Unique But Imprudent
The co-respondent mechanism and the prior involvement of the ECJ (hereinafter referred to as (‘‘PI’’) represent a unique arrangement within the Convention system and it is appropriate to consider them together, in as much as they manifest similar concerns. At the outset it is important to absolve the Court of the apparent contradiction that is speculated to exist in its discussion paper and its subsequent ruling on the PI procedure. The AG in her eagerness to highlight the presumed approval of the ECJ on the PI procedure, likened the Courts insistence on a mechanism “…capable of ensuring that the question of the validity of a Union act can be brought effectively before the Court of Justice before the European Court of Human Rights rules on the compatibility…” to an “in principle” endorsement of the PI procedure. That apart, AG rightly argues that the PI procedure is intrinsically linked with EU’s status as co-respondent and should be evaluated within that limited sphere only.
Art. 3 (6) of the Accession Agreement presented two confounding situations to the Court. First, by empowering the ECtHR to decide on the question of whether the ECJ has “…not yet assessed the compatibility…” of EU law with Convention rights, the Agreement emboldened the ECtHR to rule on the scope and content of EU law. Second, a combined reading of the Agreement and the draft explanatory report suggested a diminution of the ECJ’s jurisdiction to concern itself with the ‘validity’ of secondary EU law alone, to the exclusion of its interpretation. While both the Court and the AG maintained a hawkish stance on the compatibility of the above provision with EU law, considerable difference can be observed in their ultimate analysis. The AG considered that the PI procedure ought to be triggered in borderline cases exhibiting uncertainty as to whether the ECJ has “…already commented sufficiently on the compatibility…” However, the Court reached ahead to suggest that in all cases pending before the ECtHR, the EU institutions should be afforded an opportunity to satisfy themselves of any prior ECJ ruling on the subject and in the alternative to trigger the PI procedure. Contrary to the AG’s opinion, it is argued that a modification in the above order requires substantive amendments in the Accession Agreement itself, as it affects the relative position of the ECtHR as against EU institutions. By the amendment, the Court recommends a complete withdrawal of powers from the ECtHR and a consequent transfer to EU institutions, in matters relating to the appreciation and interpretation of prior EU law. Therefore, the Accession Agreement could not have been salvaged by a mere clarification, and had to go back to the negotiating table. In similar vein, a mere clarification to the effect that a ruling on the ‘validity’ of secondary EU law also includes ‘interpretation’ of the same, without however, accommodating a similar amendment in Art. 3 (6) of the Agreement, reeks of interpretational uncertainty. A clarification, despite being an integral part of the accession negotiations, nonetheless cannot override the express provisions of the Accession Agreement.
The co-respondent mechanism espoused similar concerns, in as much as, it empowers the ECtHR to rule on the division of competences between the EU and its MS, while deciding on applications for request to join as co-respondent and subsequently on the partitioning of liability. The Accession Agreement offered no alternatives to redeem the power of the ECJ to issue binding interpretations on EU law as a consequence of ECtHR’s ruling. In this connection, it is inconceivable that a clarification in the Accession Agreement would suffice to disentangle the complexities in the respective jurisdictions of the two courts. The objection of the ECJ strikes at the heart of the co-respondent mechanism and renders it irredeemable, in the absence of a specific amendment to its provision. The above stance of the Court could have been arguably anticipated, considering its objection to the then proposed EEA court having jurisdiction “…to rule on the respective competences of the Community and the Member States…” The Court was unambiguous in its affirmation that conferring such jurisdiction on the EEA court is likely to adversely “…affect the allocation of responsibilities defined in the Treaties…” and declared the EEA supervision system as incompatible with the EC Treaty.
The ECJ declared the Accession Agreement incompatible with EU law and in the process underscored a whole mesh of legal infirmities besetting the same. Some of those have been decried by human rights advocates while others have generally been critical. The purpose of this paper was to highlight the legal boundaries that exist and operate within the confines of which the Court was called upon to deliver its opinion. The author restricted his observations to the above-mentioned contentions due to their central importance in the scheme of the Accession Agreement and the common concern they raise. In essence, the Accession Agreement in its present form constitutes a threat to the autonomy of the EU legal order, from which the Court itself draws its powers and which the Court is obliged to preserve. It was the author’s attempt to show that, despite our own dissatisfaction with the opinion, the Court cannot be condemned for legal frailty. In its role as a constitutional court entrusted to “…ensure that in the interpretation and application of the Treaties the law is observed”, it was under an obligation to elect an interpretation of the Accession Agreement in accordance with the letter and spirit of the Treaties.
That being said, it will be interesting to observe and anticipate the changing landscape of the European human rights discourse, as a consequence of the present opinion. While it is too early to speculate on the fate of the Bosphorus equilibrium, which has held ground over the years, questions regarding double standards of human rights protection in Europe is likely to resurrect with renewed vigor. The Court’s insistence on limiting the reach of Art. 53 ECHR so as to bring it in line with its Melloni constellation of cases significantly lends credence to the above theory. By insulating EU law from the wider effects of the Convention, it practically eliminates the possibility of an ‘external control’ of EU law as against the Convention, an objective, in the absence of which, the entire EU accession project is arguably rendered futile.
*About the author: Kanad Bagchi (firstname.lastname@example.org) is a research assistant at Europa-Insitut, Universität des Saarlandes, Germany. The author is thankful to Oskar Josef Gstrein for the lively discussions and suggestions.
 See Lock, Tobias: Oops! We did it again – the CJEU’s Opinion on EU Accession to the ECHR, VerfBlog, 2014/12/18, here; Thym, Daniel: A Trojan Horse? Challenges to the Primacy of EU Law in the Draft Agreement on Accession to the ECHR, VerfBlog, 2013/9/11, here.
 Fifth negotiation meeting between the CDDH ad-hoc negotiation group and the European Commission on the Accession of the European Union to the European Convention of Human Rights, 10 June 2013. Can be accessed here.
 Art. 344 of the Treaty on the Functioning of the European Union (hereinafter ‘TFEU’) and Art. 55 European Convention of Human Rights (hereinafter ‘ECHR’) stands in direct contradiction to each other.
 Opinion, para 213.
 Commission v Ireland, C‑459/03, EU:C:2006:345, para 124 & 125.
 AG opinion, para 110.
 AG opinion, para 118.
 Case 26/62, NV Algemene Transporten Expeditie Onderneming van Gend en Loos v. Nederlandse Administratis der Belastingen  ECR 1.
 Opinion, para 212.
 Discussion document of the Court of Justice of the European Union on certain aspects of the accession of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms, 5 May 2010. Can be accessed here.
 Supra Note 15, para 12.
 AG opinion, para 125.
 AG opinion, para 127.
 Opinion, para 242.
 AG opinion, para 182.
 AG in her opinion insisted on a clarification.
 Opinion, paras 215 – 235.
 AG in her opinion insisted on a clarification.
 Supra Note 24.
 Article 19 (1) of the Treaty on European Union.
Image credit: http://commons.wikimedia.org/wiki/File:Sitzungssaal_EuGH.jpg?uselang=de, Benutzer Stefan 64, abgerufen am 25.02.2015