– a short look at where we are with the Advisory Opinion Procedure under Protocol 16
An article written by Julia Jungfleisch*
A Introduction
In his introductory remarks on the first Dialogue between Regional Human Rights Courts in San José, Sylvain Oré, President of the African Court on Human and People´s Rights, said: “(…) in our times, when human rights justice has broken the myth of geographic borders and legal systems, judicial dialogue is no longer a possible choice but rather a mandatory decision.”[1]
This does not only apply to the inter-regional level, but also to the regional level itself: The success of the Council of Europe and the European Union as law makers depends on the effective application and implementation of the respective legal frameworks the organisations created. This is facilitated not only through the ECtHR and the ECJ, but also through the national courts and their cooperation with the international counterparts.
“[A] procedure for direct cooperation between the Court and the courts of the Member States”[2] in the EU is the preliminary reference procedure under Art. 267 TFEU and until 2013, this procedure was unique to the European Union. With Protocol 16 the possibility to ask the ECtHR for guidance on the interpretation of the Convention was introduced for the highest, national courts of the CoE Member States.[3] It is however, important to bear in mind that besides their similarities, the two mechanisms are distinct and the Advisory Opinion mechanism is not intended to be the CoE´s version of Art. 267 TFEU.[4] Only recently in July 2022, the court delivered its fifth Advisory Opinion, this time requested by the French Conseil d´État.[5] As the 10th anniversary of Protocol 16 is approaching (in May next year) and the procedure gained momentum only over the last three years (after its entry into force in 2018),[6] it is worth taking a closer look at it generally (B. I.) its outcomes until now (B. II.) and the question why Germany has not yet and whether it should ratify Protocol 16 (C).
B The Advisory Opinion Procedure under Protocol 16
I. The key aspects of the procedure in brief:
The procedure serves to strengthen cooperation between the European Court of Human Rights (ECtHR) and the national courts, in compliance with the principle of subsidiarity, as the Preamble of Protocol 16 (Prot.16) underlines. The Protocol complements the cooperation of national courts and the ECtHR. That is already stipulated in Art. 35 ECHR according to which the Court can only be accessed once the national remedies have been exhausted. According to Art. 1 of Prot. 16 “(h)ighest courts and tribunals of a High Contracting Party, (…) may request the Court to give Advisory Opinions on questions of principle relating to the interpretation or application of the rights and freedoms defined in the Convention or the protocols thereto.” The Member States have to define what courts fulfil the “highest courts” requirement “at the time of signature or when depositing its instrument of ratification, acceptance or approval, by means of a declaration addressed to the Secretary General of the Council of Europe (…).”[7] The request for an Advisory Opinion can only be made in pending cases (Art. 1 (3) Prot. 16) and the requesting court has to “(…) give reasons for its request and shall provide the relevant legal and factual background of the pending case.”[8]Even thoughthe Advisory Opinions are delivered by the Grand Chamber (Art. 2 (2) Prot. 16), Art. 5 Prot. 16 expressly provides that they shall not be binding. They are nevertheless legally relevant,[9] and deviations will necessitate thorough explanations by the requesting court. The Court also considers the opinions as part of its case law, which will be referred to in judgements and decisions on individual applications.[10] If a national court refuses to follow an Advisory Opinion and the losing party lodges an individual application under Art. 34 ECHR, it is hard to imagine that the Court will not consider it as well founded.
While last-instance national courts are required by Art. 267 (3) TFEU to make a reference to the ECJ, the request under Prot. 16 is voluntarily for the national courts. The preliminary rulings of the ECJ are undoubtly, even though not uncriticised, binding.[11]
Protocol 16 now extends the possibilities of the Court to give Advisory Opinions far beyond Art. 47 ECHR. Under Protocol 16, not only the Committee of Ministers can request an Advisory Opinion, but also national courts. Moreover, the Advisory Opinions requested by the latter can also deal with questions relating to the content and scope of Convention rights. This complements the intra-organisational Advisory Opinions pursuant to Art. 47 ECHR by opinions fostering a dialogue between the judiciaries of the organisation and its Member States.
II. The Advisory Opinions until now
The above described dialogue mechanism has been completed five times until today[12] and show a variety of areas where guidance of the Court has been requested. In April 2019, the Court gave an Advisory Opinion for the French Court of Cassation, where it held, that the Convention does not oblige the Member States to register the details of the birth certificate of a child born through gestational surrogacy abroad in order to establish the legal parent-child relationship with the intended mother, as adoption may serve as a means of recognising that relationship.[13]
A year later in May 2020, the Court clarified the requirements of Art. 7 ECHR with regard to the “legislation by reference” technique to the Armenian Constitutional Court,[14] which turned to the ECtHR in a case concerning proceedings against the former President Robert Kocharyan.
The request of the Lithuanian Supreme Administrative Court concerned as well a case involving a politician. The ECtHR advised the national court here, that the criteria used for a ban on the exercise of a parliamentary mandate, “(…) should therefore be identified mainly from the perspective of the requirements of the proper functioning of the institution of which that person seeks to become a member, and indeed of the constitutional system and democracy as a whole in the State concerned.”[15]
In its Advisory Opinions, the Court repeatedly points to its own subsidiarity and the margin of appreciation of the member states‘ courts. For example in the second Advisory Opinion for Armenia, (this time for the Armenian Court of Cassation), where the Court further elaborated on the interpretation and requirements of Art. 7 ECHR and explicitly emphasised that “[i]t is first and foremost for the national courts to determine whether rules of international law having legal force in the national legal system can provide for a sufficiently clear and foreseeable legal basis within the meaning of Article 7 of the Convention to conclude that the criminal offence in question was not subject to a statute of limitation.”[16]
Or in its second Advisory Opinion for France (this time for the French Conseil d´État), where the Court provided the national court with guidance on how to interpret Art. 14 in conjunction with Art. 1 Prot.1 in the context of landowners and hunters, but made clear that “it is for the requesting court to decide whether the difference in treatment at issue is ‘legitimate and reasonable’ […].”[17]The underlying case concerned a French legislative provision excluding the possibility for landowners’ associations set up after the creation of an approved municipal hunters’ association to withdraw their land from the association´s hunting grounds once they had attained the minimum surface area to be able to do so.
III. The Protocol and its troubles
The Protocol has been set up as an “(…) innovation which would foster dialogue between courts and enhance the Court´s constitutional role.”[18] It has also been given the name “Protocol of dialogue”.[19]Already before it entered into force, the Protocol faced criticism not only from the national level[20] but also from the judiciary of the European Union, in particular, the European Court of Justice (ECJ).[21]
1. Perceived problems on the national level
In contrast to the EU level, a reference can only be made by the highest courts of the Member States, that is those that are indicated by the High Contracting Parties. At the EU level, however, it have been precisely the references by the lower courts that have been most important for the progressive development of Union law, and that the last-instance courts have been reluctant to submit to the preliminary reference procedure.[22] However, in order to avoid an overload of new cases (Prot.16 inter alia was also designed to help the Court reduce its caseload),[23] the restriction with regard to the referring national courts is reasonable.
Apart from this, it is also argued that the autonomy of national constitutional courts could be threatened by the Advisory Opinion procedure, because this procedure would give the Court the position of last instance, if not a constitutional court on the Convention level.[24]
However, the Court is only allowed to decide on the interpretation and application of the Convention. Also, the Member States are already obliged to bring their domestic laws and constitutions in line with the Convention. The Advisory Opinion itself is not binding and does not oblige the Member States to take specific measures, but merely gives an opinion about the requirements of the articles of the Convention, leaving it to the Member States to adjust their laws and measures with these requirements.
The Court does not impose concrete obligations on how to solve incongruences or violations as could be seen above for example in the fourth Advisory Opinion.[25] The Member States keep their margin of appreciation in this regard.
All in all, the Advisory Opinion procedure is characterised by a high degree of voluntariness on the part of the Member States, firstly in determining the courts entitled to make requests, secondly with regard to the question of whether a case is referred by the respective national court at all, and thirdly in implementing the opinion, which is not binding on the Member States.. This is an expression of the principle of subsidiarity which Protocol No. 15 has added to the preamble of the ECHR and which is also the basis of the Protocol 16. The aim of the high degree of voluntariness is to ensure better acceptance by the State Parties concerning the ratification and implementation of the Protocol. However, Protocol 16 has currently only been ratified by 16 states.[26] The other 30 Convention states, including Germany and Italy, have so far refused.[27]
While Germany does not see any advantages deriving from ratification, Italy fears losing its autonomy.[28] This perceived loss of autonomy in the event of ratification is also shared by the ECJ.
2. Problems on the EU level perceived by the ECJ
In Opinion 2/13 requested by the European Commission pursuant to Art. 218 (11) TFEU in the context of the planned EU accession to the ECHR,[29] the ECJ also objected to the advisory procedure under Prot. 16: The Court of Justice identified a problematic rivalry with the procedure under Art. 267 TFEU, because the national courts could submit the same question to the Strasbourg Court as well as to the ECJ. The draft accession agreement did not regulate the relationship between the two procedures.[30] This could diminish the competences of the ECJ where a national court refers a question to the ECtHR that at its core deals with fundamental rights enshrined in the EU Charter of Fundamental Rights (which has to be interpreted in conformity ith the ECHR as a minimum standard of protection (cf. Art. 52 (3) CFR)).[31] The preliminary reference procedure is of the utmost importance for the unity and effectiveness of EU law, which makes its protection a priority of the ECJ.[32] The Advisory Opinion mechanism pursuant to Protocol 16 could render the preliminary reference procedure ineffective by allowing its circumvention, thereby weakening the EU´s judicial system.[33]
The ECJ´s opinion 2/13 may not only prevent Member States from ratifying the Protocol 16, but also affect potential EU accession candidates,[34] which may be a further explanation for the lack of ratification by the majority of the CoE Member States. There are however, good reasons to ratify the Protocol.
C Four good reasons to sign and ratify Protocol 16
Germany has neither signed nor ratified Protocol 16, because “(…) in the view of the Federal Government, such an option offers no added value with regard to the extensive fundamental rights protection in Germany. Ratification is therefore not intended.”[35]
However, there are four good reasons to ratify Protocol 16: The fear regarding the loss of autonomy of the national constitutional courts is unconvincing, ratification will actually reinforce that autonomy.
1. The principle of subsidiarity was explicitly introduced into the Convention with Protocol 15 and underlies the Convention and its application.[36] Protocol 16 specifically puts an emphasis on that principle in its preamble.[37] This underlines the primary responsibility of the national courts in securing the Convention rights,, which is to be reinforced by their right to request Advisory Opinions from the ECtHR.[38]
2. Furthermore, irrespective of the ratification of the Protocol, the Advisory Opinions have legal effects for all Member States as they form part of the case-law of the Court. The Court has stated that it will base its decisions on individual applications also on the interpretation made in Advisory Opinions.[39] A good example is the first Advisory Opinion which the Court followed when deciding the case Menneson v France.[40] In the absence of ratification, there is no possibility for the respective domestic court/Member State to participate in the creation of this case-law.[41]
3. The ECJ´s critique does not hinder ratification either: Advisory Opinions concerning EU law are excluded for EU Member States by EU law, preventing the circumvention of the preliminary ruling procedure. This could be reconfirmed in the agreement on EU accession to the ECHR.[42] In any case, the circumvention of the preliminary ruling mechanism by a Member State can be sanctioned by an infringement procedure pursuant to Art. 258 TFEU and would therefore not go unpunished.[43] Also and this is an important point as well, the accession to the ECHR (but not Protocol 16) remains a legal duty of the EU under Art. 6 of the TEU, Protocol No. 8 to the TEU and the TFEU, and Declaration No. 2 on Article 6(2) of the TEU.[44] Besides, even though EU law prevents the European Union from accession, it does not hinder the Member States to individually ratify the Protocol.
4. The five Advisory Opinions the Court has issued so far cover issues that concern not only the requesting state (court) but also all other Member States, e.g. questions concerning surrogacy or the impeachment of politicians. Such questions also arise in German courts and even though there is an “extensive fundamental rights protection” in place in Germany, the possibility of guidance from Strasbourg will only improve that protection. The Federal Constitutional Court already extensively quotes and relies on the jurisprudence of the ECtHR in its case law, and the possibility to ask for guidance could improve the implementation of the Convention and thereby the protection of human rights in Germany and improve the cooperation and harmonised application of the Convention throughout the Member States. There is no such a thing as too much human rights protection.
*Dipl.-Jur. Julia Jungfleisch, LL.M. is Research Associate and PhD candidate at the chair of Prof. Dr. Thomas Giegerich,LL.M.
[1] Sylvain Oré in: Dialogue between Regional Human Rights Courts, p. 45, available here.
[2] ECJ, C-62/14, para. 15.
[3] Protocol No. 16 to the Convention on the Protection of Human Rights and Fundamental Freedoms, CETS 214 (Protocol 16).
[4] Report of the Group of Wise Persons to the Committee of Ministers, 979bis meeting, CM(2006)203, para. 80; see also: Siofra O´Leary and Tim Eicke, Some reflections on Protocol No. 16, available here.
[5] Advisory Opinion on the assessment, under Article 3 of Protocol No. 1 to the Convention, of the proportionality of a general prohibition on standing for election after removal from office in impeachment proceedings, Requested by the Lithuanian Supreme Administrative Court, Request no. P16-2020-002, (Advisory Opinion P16-2020-002).
[6] Through the ratification of France in April 2018, as the 10th member state. Protocol 16 is ratified by only 16 of the 46 member states of the CoE, Germany for example has neither signed nor ratified the Protocol. The current ratification status can be found here.
[7] Art. 10 Protocol 16.
[8] Art. 1 (3) Protocol 16.
[9] Maria Dicosola, Cristina Fasone, Irene Spigno, The Prospective Role of Constitutional Courts in the Advisory Opinion Mechanism Before the European Court of Human Rights: A First Comparative Assessment with the European Union and the Inter-American System, German Law Journal 2015, 1387, (1389).
[10] European Court of Human Rights, Reflection paper on the proposal to extend the Court´s Advisory Opinion, para. 44, the paper is available here; but also Explanatory Report, (Fn. 27), para. 27.
[11] As recently reaffirmed by the ECJ in: Judgment of the Court (Grand Chamber) of 22 February 2022, C-430/21, ECLI:EU:C:2022:99; the contrary position of the German Federal Constitutional Court for example in BVerfG, Judgment of the Second Senate of 5 May 2020 – 2 BvR 859/15, is following the jurisprudence of the ECJ, in violation of the principle of primacy of EU law.
[12] In total there are six references, however, one reference made by the Slovak Supreme Court (Request no. P16-2020-001) has been rejected, the decision is available here.
[13] Advisory Opinion concerning the recognition in domestic law of a legal parent-child relationship between a child born through a gestational surrogacy arrangement abroad and the intended mother, requested by the French Court of Cassation (Request no. P16-2018-001).
[14] Advisory Opinion concerning the use of the “blanket reference” or “legislation by reference” technique in the definition of an offence and the standards of comparison between the criminal law in force at the time of the commission of the offence and the amended criminal law, requested by the Armenian Constitutional Court, (Request no. P16-2019-001).
[15] Advisory Opinion on the assessment, under Article 3 of Protocol No. 1 to the Convention, of the proportionality of a general prohibition on standing for election after removal from office in impeachment proceedings, requested by the Lithuanian Supreme Administrative Court, (Request no. P16-2020-002).
[16] Advisory Opinion concerning the use of the “blanket reference” or “legislation by reference” technique in the definition of an offence and the standards of comparison between the criminal law in force at the time of the commission of the offence and the amended criminal law, requested by the Armenian Constitutional Court, (Request no. P16-2019-001).
[17] Advisory Opinion on the difference in treatment between landowners’ associations “having a recognised existence on the date of the creation of an approved municipal hunters’ association” and landowners’ associations set up after that date, requested by the French Conseil d’État, (Request no. P16-2021-002).
[18] Report of the Group of Wise Persons (Fn. 4), para. 81.
[19] As cited by Nasiya Daminova, Protocol 16 of the ECHR in CJEU Opinion 2/13: Analysis and perspectives, available here.
[20] See e.g: Władysław Jóźwicki, Protocol 16 to the ECHR – A convenient Tool for Judicial Dialogue and Better Domestic Implementation of the Convention? In: European Judicial Systemes as Challenge for Democracy, p. 183-209.
[21] Opinion pursuant to Article 218(11) TFEU — Draft international agreement — Accession of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms — Compatibility of the draft agreement with the EU and FEU Treaties, Case Opinion 2/13, ECLI:EU:C:2014:2454.
[22] See for example the German Federal Constitutional Court, BVerfG, Urteil des Zweiten Senats vom 05. Mai 2020 – 2 BvR 859/15 or the Polish Constitutional Court, https://www.dw.com/en/polands-top-court-rules-against-primacy-of-eu-law/a-59440843.
[23] Jóźwicki, (Fn.13), p. 197ff.
[24] Drawing a comparison to the national constitutional courts: Dicosola, Fasone, Spigno (note 8), p. 1392.
[25] See above Fn. 16.
[26] For the ratification status of Protocol 16 (CETS No. 214), see: https://www.coe.int/en/web/conventions/full-list?module=signatures-by-treaty&treatynum=214.
[27] Nine of them have at least signed it, see Footnote 18.
[28] On the problems in the Italian context see: Giovanni Zampetti, The recent challenges for the European system of fundamental rights: Protocol no. 16 to the ECHR and its role facing constitutional and European Union level of protection, Europa Kolleg Hamburg, Discussion Paper No.2/18, available here. More on the German approach below in the text accompanying footnotes 27 ff.
[29] Opinion 2/13 of the Court of 18 December 2014, ECLI:EU:C:2014:2454.
[30] 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 On Human Rights, Final report to the CDDH, 47+1(2013)008rev2, the draft can be accessed here.
[31] ECJ, (Fn. 20), paras. 196, 199.
[32] Ibid., para. 176: „(…) the judicial system as thus conceived has as its keystone the preliminary ruling procedure provided for in Article 267 TFEU,(…).“
[33] ECJ, (Fn. 20), paras. 176, 197ff.
[34] See on this, Daminova, Fn. 13.
[35] As stated in a report of the current Federal Government concerning the signature and ratificiation of european and international treaties and conventions, Bericht der Bundesregierung zum Stand der Unterzeichnung und Ratifizierung europäischer Abkommen und Konventionen durch die Bundesrepublik Deutschland für den Zeitraum März 2019 bis Februar 2021, BT-Drs. 20/427, p.18 (translation by the author), available here.
[36] Protocol No. 15 amending the Convention for the Protection of Human Rights and Fundamental Freedoms (CETS No. 213), available here.
[37] The Text of the Protocol is available here.
[38] Explanatoy Report, para. 12, available here; see also: Dicosola, Fasone, Spigno, (note 8) p. 1392.
[39] European Court of Human Rights, Reflection paper on the proposal to extend the Court´s Advisory Opinion, para. 44, the paper is available here; but also Explanatory Report, (Fn. 27), para. 27.
[40] ECtHR, Menneson v France, Application no. 65192/11.
[41] Enrico Albanesi, The European Court of Human Rights´ Advisory Opinions legally affect non-ratifying states: a good reason (from a perspective of constitutional law) to ratify Protocol 16 to the ECHR, European Public Law 2022, 1, (2).
[42] Steve Peers, The CJEU and EU´s accession to the ECHR: a clear and present danger to human right protection, available here; but also the ECJ in its Opinion 2/13, (Fn. 20) paras. 199f.
[43] See also: O´Leary and Eicke, (Fn. 4), p. 19.
[44] See on this, Daminova, Footnote 13.
