Abstract
The relationship between the Luxembourg and Strasbourg courts, EU law and the Convention system at-large are fundamentally conditioned by the legal status of the Convention and Accession Agreement in EU law. This chapter offers a novel examination of the status of the Convention and the DAA in EU law post-accession, analyzing not only the overall picture of cohabitation and/or competition but also the internal effect that accession will likely pose to the EU legal order (in relation to the Convention and the DAA). This chapter responds to the research question: ‘What is the legal status of the ECHR and DAA in the EU legal order post-accession?’ The chapter starts by examining the position and mode of penetration of international agreements in EU legal order, giving special emphasis to the effect that such agreements produce within the EU legal order. Haegeman, Commission v. Germany, Demirel and Bananas are examined to deconstruct Luxembourg’s stance on international agreements concluded by the EU, either alone or together with Member States. A careful deconstruction of Luxembourg’s jurisdiction to observe those agreements is also provided, showing how similarities may be drawn with regard to both the Convention and Accession Agreement. Then, the chapter embarks on an examination of the status of the Convention and the DAA, contrasting them with current Luxembourg benchmarks on international agreements. Arguing that neither the Convention nor the DAA form part of the usual international agreements which the EU has concluded, the chapter goes on to provide a novel analysis of the status of Convention and the DAA in the EU legal order arguing that this should be taken as a very unique case. The chapter then provides a comprehensive analysis on the specific status of the Convention and the DAA post-accession, examining both their rank and implied position within a multilayered system of human rights, while considering potential implications.
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Notes
- 1.
Lauterpacht, as an example, stands in this line, arguing that international law, not constitutional law, should govern the relationship concerned. See: Lauterpacht in Maniruzzaman (2001), p. 311 et seq.
- 2.
- 3.
See a very good contribution on this topic, at: Wilson (1964).
- 4.
See a general study on this, at: La Pergola (1993).
- 5.
See why this issue should not anymore be so relevant, at: Eeckhout (2004), p. 155.
- 6.
The EU currently is part of around 90 international agreements. See on this: Wessel (2008), p. 152.
- 7.
Court of Justice of EU, Haegeman, Case 181/73 [1974] ECR 449, judgment of 30 April 1974, para 5; See also: Court of Justice of EU, Hauptzollamt Mainz ν Kupferberg, Case 104/81 [1982] ECR 3641, paragraph 13 (‘In ensuring respect for commitments arising from an agreement concluded by the Community Institutions the Member States fulfil an obligation not only in relation to the non-member country concerned but also and above all in relation to the Community which has assumed responsibility for the due performance of the agreement’).
- 8.
De Londras and Kingston (2010), p. 367; Including customary international law, with a rule deriving from VCLT as the case. See on the latter: Court of Justice of EU, Racke v Hauptzollamt Mainz, Case C-162/96, judgment of 16 June 1998, paragraph 46-8; Court of Justice of EU, R & V Haegeman v Belgian State, Case 181/73 [1974] ECR 449, para. 5; Court of Justice of EU, Andersson and Wåkerås-Andersson, Case C-321/97 [1999] ECR I-3551; See also: Mendez (2010), pp. 1721–1723; Similarly, see: van Rossem (2009), p. 187; Some insist that the Universal Declaration of Human Rights has become a central part of customary international law in this regard. See e.g.: Rodley (1989).
- 9.
E.g.: Quirico (2010), p. 34.
- 10.
Klabbers therefore rightly argues that ‘Haegeman [is seen] as a manifesto of monism, pointing out that to claim that treaties form an integral part of the legal system is typically an exercise in monism.’ Klabbers (2002), p. 277.
- 11.
AG Gulmann, in this context, had argued that: ‘That was particularly emphasized in the Court’s judgment in Case 104/81 Kitpferberg, in which the Court stated that the effects in the Community of the provisions of an international agreement cannot be determined without account being taken of the origin in international law of its provisions and that it follows from the principles of international law that the contracting parties may determine what effects the provisions of the agreement are to have in their internal legal order.’ (Opinion Of Advocate General Gulmann in C-280/93, Germany v Council. Opinion delivered on 8 June 1994, para. 127). With a similar view on the Convention, it is needs be discussed whether the latter must enjoy a special status in the EU legal order, something that is predetermined by its origin in the terms of Kitpferberg case; Cf.: Gragl in this regard argues that with the Convention becoming part of EU law, the Luxembourg Court will interpret it within its jurisdiction to observe the law. Such fact will ensure that the Convention becomes first interpreted and applied in individual cases by the national court of the contracting party, the EU, and thereafter if a case of alleged violation would arise, by the Strasbourg Court. This fact, according to Gragl, perfectly maintains the principle of subsidiarity of the Convention system, as it allows the Convention to become part of the law that will be considered from within against potential cases before the Strasbourg Court will have a chance to assess the case from its external perspective. See: Gragl (2013), p. 265.
- 12.
Court of Justice of EU, Commission of the European Communities v. Federal Republic of Germany, Judgment, Case C-61/94, para 52.
- 13.
See also a logical conclusion on this, at: Court of Justice of EU, Commission of the European Communities v Federal Republic of Germany (International Dairy Arrangement), Case C-61/94 [1996] ECR I-3989, para. 52; See also: Court of Justice of EU, Agrover Srl v Agenzia Dogane Circoscrizione Doganale di Genova, Case C-173/06 [2007] ECR I-8783, para. 17.
- 14.
See also: Opinion of AG Tesauro in case Commission v. Germany, C-61/94, delivered on 7 May 1996.
- 15.
Court of Justice of EU, Case 104/81, Hauptzollamt Mainz ν Kupferberg [1982] ECR 3641, judgment. Para. 14; Cf. Kapteyn (1974), p. 74.
- 16.
Opinion of Mr. Advocate General Darmon, Demirel v. Stadt Schwäbisch Gmünd. C-12/86, delivered on 19 May 1987.
- 17.
Court of Justice of EU, Demirel v. Stadt Schwäbisch Gmünd, Case 12/86, Judgment Of The Court, 30 September 1987.
- 18.
Opinion of Mr. Advocate General Darmon, Demirel v. Stadt Schwäbisch Gmünd. C-12/86, delivered on 19 May 1987.
- 19.
Court of Justice of EU, Opinion 1/75 (OECD Local Cost Standard) [1975] ECR 1355, p. 1359/60.
- 20.
Court of Justice of EU, Portugal v. Council, Case C-149/96, Judgment of the Court, 23 November 1999. para 35; See also: Court of Justice of EU, Anklagemyndigheden v Peter Michael Poulsen and Diva Navigation Corp, Case C-286/90 [1992] ECR I-6019, para. 9; Gragl (2013), p. 98/9.
- 21.
To note, the EU Court has ruled in Demirel that an international agreement in this sense needs to be ‘sufficiently precise and unconditional’ on its stipulations in order to be of direct effect. (Court of Justice of EU, Case C-12/86 Demirel [1987] ECR 3719, para. 23; emphasis added); On the latter, see also: Court of Justice of EU, Sevince, Case C-192/89 [1990] ECR 3461, para. 14 et seq; Court of Justice of EU, Simutenkov, Case C-265/03 [2005] ECR I-2579; On the direct effect of international agreements of EU in Member States’ legal orders, see e.g.: Lenaerts and Corhaut (2006); On some exceptions on direct effect of international agreements in EU legal order, see also: Court of Justice of EU, Foster and others v British Gas plc, Case C-188/89 [1990] ECR I-3313, para 18.
- 22.
See e.g.: Lock (2012), p. 190; See also: Gragl (2013), p. 99; Contra, a previous and old case of the EU Court exhibiting ECHR as a supporting tool of interpretation rather than an incorporated part of EU law (in a pre-accession scenario), see: Court of Justice of EU, Mayr-Melnhof Kartongesellschaft mbH v Commission of the European Communities, Case T-347/94 [1998] ECR II-1751, para. 311/2.
- 23.
Gragl (2013), p. 98.
- 24.
Court of Justice of EU, Demirel v. Stadt Schwäbisch Gmünd, Case 12/86, Judgment, CJEU, 30 September 1987, paras. 8–9.
- 25.
In this context, similarly, the Luxembourg Court has ruled in Court of Justice of EU, Commission v. France (Case C-239/03, judgment, para. 25), that: ‘In accordance with case-law, mixed agreements concluded by the Community, its Member States and non-member countries have the same status in the Community legal order as purely Community agreements in so far as the provisions fall within the scope of Community competence.’ [emphasis added].
- 26.
Neframi (2010), p. 331.
- 27.
Court of Justice of EU, Germany v. Council, Case C-280/93, Judgment of the Court, 5 October 1994, para 111.
- 28.
Court of Justice of EU, International Fruit Company v Produktschap voor Groenten en Fruit, Joined Cases 21 to 24/72 [1972] ECR 1219, para 5.
- 29.
- 30.
Weiß (2011), p. 91; On direct effect of international agreements, see also: Court of Justice of EU, Texaco A/S v Middelfaert Havn and others, Joined Cases C-114/95 and C-115/95 [1997] ECR I-4263.
- 31.
Court of Justice of EU, International Fruit Company, Joined Cases 21 to 24/72 [1972] ECR 1219, note 28, para 6.
- 32.
Court of Justice of EU, International Fruit Company, Joined Cases 21 to 24/72 [1972] ECR 1219, note 28, paras. 7 & 8.
- 33.
Cf.: Gragl (2013), p. 105–108, who argues that the fact that the Convention will be duplicated—once by becoming incorporated into EU law and once through its previous incorporation into Member States’ law—may produce interesting and conflicting situations. Gragl rightly notes that the EU-law incorporated Convention will comprise part of the principle of primacy of EU law, therefore take precedence over national laws of member states. On the other hand, the incorporated Convention at the level of national law will be subsumed to the EU-law principle of supremacy (which includes the Convention as well). In this situation, the Luxembourg Court’s decisions on the Convention will take primacy over potential Strasbourg Court decisions on national law of Member States; Another scenario, according to Gragl, would be if Member States’ obligations under the Convention and EU law were to clash. In such a scenario, the Member States would first be obliged to the Luxembourg Court and only after that to the Strasbourg Court. In such scenario, Gragl proposes that the national court should pose a preliminary reference question and leave it to the EU Court to decide how to tackle those conflicting situations. See: Gragl (2013), pp. 108–110. Gragl’s latter scenario supposes that the conflicting obligation stems on the one hand from EU secondary law, and on the other, from the Convention. Gragl therefore finds the answer on the preliminary reference procedure which may invalidate the secondary EU law act and therefore possibly defer to the Convention, therefore resolving the potential conflict. Gragl’s answer, however, does not work if the Member States’ conflicting obligations were to stem from the EU primary law and the Convention, in which case the EU Court would have no choice but to violate the Convention and defer to its Treaties, therefore pulling the Member States with it in that terrain of violation (which member states would need to commit due to the principle of primacy).
- 34.
E.g.: Weiß (2011), p. 65.
- 35.
E.g.: van Rossem (2009), p. 208.
- 36.
Odermatt (2014), p. 12 & 36; Cf.: On the obligation of every entity of international law to respect international agreements, see: International Court of Justice, Cameroon v Nigeria, Preliminary Objections Judgment, ICJ Reports, 1998, para. 38 (‘The Court observes that the principle of good faith is a well-established principle of international law.’); On the latter, see also: The 1970 Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States. UN General Assembly resolution 2625 (XXV)—October 1970.
- 37.
Jacobs (2008), p. 31.
- 38.
In this regard, see: See also: Court of Justice of EU, Åklagaren v Hans Åkerberg Fransson, Case C-617/10 [2013] para. 44: ‘[…]it is to be remembered that whilst, as Article 6(3) TEU confirms, fundamental rights recognised by the ECHR constitute general principles of the European Union’s law and whilst Article 52(3) of the Charter requires rights contained in the Charter which correspond to rights guaranteed by the ECHR to be given the same meaning and scope as those laid down by the ECHR, the latter does not constitute, as long as the European Union has not acceded to it, a legal instrument which has been formally incorporated into European Union law.’ [emphasis added].
- 39.
Cf.: Gragl notes that neither the DAA nor the Convention make any implicit or explicit mention of the status that they will have in the EU legal order post-accession. See: Gragl (2013), p. 97.
- 40.
Morijn (2006), p. 21.
- 41.
Court of Justice of EU, Opinion 2/94, para. 34/5.
- 42.
Cf.: Morano-Foadi and Andreadakis (2011), p. 600, who argues that there may be no hierarchy between the Charter, ECHR and general principles of law deriving from Member States’ constitutional traditions, something that suggests a primary law function for all of them; See a rather similar consideration at: Muir (2014), p. 219; These three articles that were devised with the Lisbon Treaty are seen as enhancing the overall human rights protection in the Union, at: Carruthers (2009), p. 804.
- 43.
E.g.: Hofmann and Mihaescu (2013), p. 73.
- 44.
Permanent International Court of Justice, Advisory Opinion on the Competence of the ILO to Regulate Agricultural Labour, P.C.I.J. (1922), Series B, No. 2/3, p. 23.
- 45.
van Rossem (2009), p. 209.
- 46.
- 47.
- 48.
See e.g.: Hart (2010), p. 550.
- 49.
- 50.
van Rossem (2009), p. 210.
- 51.
Martín and De Nanclares (2013), p. 3.
- 52.
- 53.
See also, generally: Muir (2014), p. 243.
- 54.
Regarding this relationship, the EU Court has ruled in Cinéthèque that: ‘[A]lthough it is the duty of the Court to ensure observance of fundamental rights in the field of Community law, it has no power to examine the compatibility with the European Convention on Human Rights of national legislation lying outside the scope of Community law.’ Court of Justice of EU, Cinéthèque v Fédération nationale des cinémas français [1985] ECR 2605, Judgment of 11 July 1985 in Joined Cases 60 and 61/84, p. 2618.
- 55.
Gragl argues in this regard that Art. 6 (3) TEU—in view of the Luxembourg Court’s stance—binds EU internally but not externally in the context of the ECHR as an international law instrument (see: Gragl 2013, p. 54). Gragl’s point makes sense if one tries to understand the facade which is often used by the Luxembourg Court to package its use of rights rhetoric, however, this may not change the fact that ECHR system is an instrument of international law, which, although provided on a domestic constitutional obligation by TEU, still penetrates into EU law from its international law position and remains a standard of international law rather than domestic EU law.
- 56.
Harding (2000), p. 141.
- 57.
Besson (2009), p. 254, who argues that in Kadi II, the Court argued that there was no contest that international law was confirmed as having primacy over the EU legal order, of course excluding this possibility when the compliance of international law with ius cogens is in question.
- 58.
Cf. with Court of Justice of EU, Case T-112/98, Mannesmannröhren-Werke v Commission [2001] ECR II-729, para 75, wherein the Court in 1998 argued that an applicant cannot invoke ECHR directly before it.
- 59.
See e.g.: Franklin (2010–2011), p. 142.
- 60.
Lenaerts (2012), p. 376, who argues in favour of making the Charter and human rights in the EU a ‘federalized device’; See also: Lenaerts and Gutiérrez-Fons (2010), p. 1658, on how EU human rights law can be read as affecting the powers assigned by the Treaties in the ‘limiting’ sense; Editorial (2013), p. 472 et seq.
- 61.
‘It could be easily predicted that the approval of the Charter of Fundamental Rights would produce a centralising effect, gradually drawing the protection of human rights to the European level and at the same time sterilising the protection guaranteed by the national Constitutions and breaking the limits of jurisdiction in which the action of the Community institutions should be carried out.’ Cartabia (2009), p. 17; Compare this with supra Chap. 4 on how the EU will become primus inter pares once EU accedes to ECHR.
- 62.
Franklin (2010–2011), p. 161 (‘[…] the entry into full legal force of the Charter would at the very least serve to render the relationship not only between the Charter and the Convention but also between the two Courts as less legally ambiguous and less contingent upon the mere goodwill of the ECJ to accept in practice.’).
- 63.
See also: O’Meara (2011), p. 1819; Martín and De Nanclares (2013), p. 4; Cf.: Referring to another agreement, ECJ had ruled that: ‘The fact that the provisions of the agreement and the corresponding Community provisions are identically worded does not mean that they must necessarily be interpreted identically.’ (Court of Justice of EU, Opinion 1/91 (1991) ECR I-6079, para. 14); Cf.: de Rivery and Chassaing (2013), p. 3, who argue that the Charter is put by Art. 6 TEU in the same level of hierarchy with the general principles of law and ECHR in the pool of EU legal order.
- 64.
Heringa and Verhey (2011), p. 16; See also: Krüger (2002–2003), p. 91; Ribble (2010–2011), p. 224; Lenaerts and de Smijter (2001), p. 97; Craig (2013), p. 1148; Cf.: García (2002), p. 497/8, although there exists the possibility still for divergent interpretations between the Luxembourg and Strasbourg courts.; See also: Landau (2008), p. 565; Cf.: Wetzel (2003), p. 2839 (‘[…] the ECJ appeased those concerned that fundamental rights protection at the Community level would fail to meet the minimum standards in the ECHR without making itself subservient to the Strasbourg Court.’); See also: Von Bogdandy et al. (2012), p. 517; See also: Gragl (2013), p. 61.
- 65.
Weiß (2011), p. 69; See also: Heringa and Verhey (2011), p. 17 (‘It seems plausible to assume on the basis of the final sentence of Article 52 section 3, (“This provision shall not prevent Union law providing more extensive protection”), that the case law of the Court will be considered as defining the minimum level of protection, from which the ECJ may certainly deviate, but only in order to provide a more extensive protection.’); On the latter argument, see also: Balfour (2005), p. 34; Lenaerts and de Smijter (2001), p. 99.
- 66.
Weiß (2011), p. 70; Cf.: Gragl makes the point, referring to some authors, that the EU is not bound by the Convention as long as it has not acceded to it (Gragl 2013, p. 54). This argument may be to a certain degree valid if one looks the Convention from its international law perspective and the fact that it may not put obligations on entities which have not become contracting parties to it. However, from the domestic constitutional perspective, one must disagree with the Gragl’s point, by arguing that the primary law stipulations established in Art. 6 (3) TEU and Art. 52 & 53 ChFR may not be understood in another way but as indisputably binding the EU to the Convention’s rights. It seems pointless to make the argument that—as some, including generally Gragl, try to make—that the Convention as such is different from the rights enshrined by it. One may in no way pretend that the rights enshrined by the Convention form part of a different body of law from the Convention, as this would then make the point of effective human rights protection totally moot.
- 67.
Heringa and Verhey (2011), p. 16; Cf.: Gragl notes that although this may be read as incorporation of the Convention to the Charter it may not be read as subordination of the Luxembourg Court to the Strasbourg Court: See: Gragl (2013), p. 62. I disagree with Gragl in this regard, not for the overall conclusion he arrives at but rather for the fact that, according to him, such ‘incorporation’ should be read as having no relevance in terms of the relationship between the two courts. Such argument seems moot for the mere fact that the relationship between the two acts should definitely produce some effect also with regard to the relationship between the two courts which hold exclusive jurisdiction on those acts.
- 68.
Craig (2013), p. 1149.
- 69.
Court of Justice of EU, Schecke GbR v. Land Hessen, Cases C-92-93/09.[2010] E.C.R. I-11117, para. 51.
- 70.
If the Union were to make this as non-obligatory, it would use the verb ‘may’ instead. See a comparison for the same legal comparison of this verb, at: Mendez (2010), p. 1729; Cf.: Licková (2008), p. 490, who argues that—as exemplified from similar cases like Bosphorus—such type of relationship is meant as furthering the European integration concept in the context of the Luxembourg Court’s pattern as followed to date.
- 71.
See on the latter: Callewaert (2014), p. 48.
- 72.
Accord.: Franklin (2010–2011), p. 159, who argues that the accession is a mandatory positive duty for the EU.
- 73.
Contra: Weiß (2011), p. 71/2, where the author tries to portray the Convention merely as an international agreement standing between the primary and secondary law.
- 74.
Cf.: ‘In the light of article 6(3) TEU in particular, it would be contrary to EU law to disregard the Convention.’ Eckes (2013), p. 278/9.
- 75.
It is argued that should the EU choose not to accede, that would give entitlement to anyone to use the action for failure to act on basis of the Treaties’ obligation on the Union before the Luxembourg Court. See on this argument: Jacque (2011), p. 995.
- 76.
In many national legal orders of EU Member States, the Convention retains a constitutional rank in the hierarchy of law. See e.g.: Martinico (2012), p. 404; See also on the latter: Callewaert (2014), p. 21; See also: Sweet (2009), p. 630/1, arguing that ECHR system is meant to be of a general constitutional nature.
- 77.
See e.g.: Groussot et al. (2011), p. 16, who argues that it would suffice to be considered that the EU law autonomy is not touched by the DAA if it establishes no new competences for the Union; See also: Gragl (2013), p. 8, who rightly notes that it would not be logical to expect that the EU and its Court will give up from their competences and authority which they have so hardly taken from the sovereign Member States. In view of this, the limitations drawn with Protocol 8 seem to accommodate this rationale.
- 78.
On the argued complexity of these negotiations, see e.g.: Olsen (2009–2010), p. 73.
- 79.
See also: Sweet (2009), p. 637.
- 80.
Quirico (2010), p. 34; See also: Gragl (2013), p. 102; Accord: De Londras and Kingston (2010), p. 370 (‘[…] general principles of Community law rank at the same level as the EC and EU Treaties themselves […]’); For the utilization of general principles of EU law to invalidate secondary law acts, see e.g.: Court of Justice of EU, Omega Spielhallen, Case C-36/02, [2004] ECR 1-9609; Court of Justice of EU, Schmidberger v. Austria, Case C-112/00, [2003]ECR 1-5659; Cf.: Balfour (2005), p. 12 (Advocate-General Cosmas argued in Van Der Wal that: ‘The Court of Justice and the Court of First Instance do not apply the ECHR, but rather the general principles of Community law.’).
- 81.
Utilizing its authority under Art 19 (1) TEU.
- 82.
Court of Justice of EU, Orkem SA v. Commission, Case 374/87, [1989] ECR 3283.
- 83.
- 84.
Akehurst (1981), pp. 29 and 30.
- 85.
Fitzmaurice (1957), p. 7.
- 86.
Lenaerts and Gutiérrez-Fons (2010), p. 1629.
- 87.
Court of Justice of EU, Case 6/64 Costa v ENEL [1964] ECR 585.
- 88.
Court of Justice of EU, Transocean Marine Paints Association v. Commission, Case 17-74, 1974 E.C.R. 1063.
- 89.
Court of Justice of EU, Töpfer & Co. GmbH v. Commission, C-112/77, 1978 E.C.R. 1019.
- 90.
Court of Justice of EU, R v. Kirk, C-63-83, 1984 E.C.R. 2689.
- 91.
Court of Justice of EU, Case 222/84, Johnston v. Chief Constable of Royal Ulster Constabulary [1986].
- 92.
Court of Justice of EU, Case 1/59, Macchiorati Dalmas e figli v. High Authority [1959].
- 93.
Tridimas (2006), p. 4.
- 94.
Court of Justice of EU, Opinion 1/91 on Draft Agreement Relating to the Establishment of the European Economic Area, para 21; See also: Reestman (2005), p. 104.
- 95.
Akehurst (1981), p. 30.
- 96.
Court of Justice of EU, Audiolux SA and Others v Groupe Bruxelles, Case C-101/08, Judgement of the Court of 15 October 2009, para. 63.
- 97.
Court of Justice of EU, Kadi and Al Barakaat International Foundation v Council and Commission, C-402/05 P and C-415/05 P [2008] ECR I-6351, para. 303.
- 98.
Court of Justice of EU, Kadi and Al Barakaat International Foundation v Council and Commission, C-402/05 P and C-415/05 P [2008] ECR I-6351, note 97, para. 304.
- 99.
It is not the intention to argue here that the Convention as such is formally recognized as a general principle of EU law, but rather that the rights which the Convention enshrines form general principles of EU law. Such fact, one should say, leads to the argument that the Convention is—substantively speaking—a general principle of EU law as well. It seems not wise and even relevant to make a distinction between the rights guaranteed by the Convention and the Convention itself: such distinction is practically moot. Therefore, substantively, the Convention is intentionally regarded as a general principle of EU law in this chapter.
- 100.
On primacy, and its legal nature: Reestman (2005), p. 104 et seq.
- 101.
The general rule to sign mixed agreements in external relations seems the usual path followed in practice. See: Leal-Arcas (2001), p. 483.
- 102.
On ordinary trade agreements, e.g., see: Woolcock (2005), p. 245 et seq.
- 103.
- 104.
See the ordinary revision procedure, at: Peers (2012), pp. 19 et seq.
- 105.
Art 218 (6) [a: iii]; On how the EP protects its right on international agreements, see a landmark case, at: Court of Justice of EU, Parliament v Council, Case C-189/97 [1999] ECR I-4741.
- 106.
Art 218 (6) TFEU.
- 107.
- 108.
Cf.: Koutrakos (2006), p. 152 (‘Mixity enables the Community institutions and the Member States to avoid debates about the legal bases of envisaged agreements and arguments about precise delineation of competences.’).
- 109.
On ‘Kompetenz-Kompetenz’ in cases involving international agreements in the EU, see: Kumm (2005), p. 264.
- 110.
Callewaert (2014), p. 52.
- 111.
See also: Peers (2012), p. 19 et seq.
- 112.
Cf.: ‘Considering that the Court of Justice in Kadi has elevated human rights (together with other core principles of EU law) to the status of being the ‘very foundations’ of constitutional law that rank above ‘ordinary’ EU primary law, a breach of the ECHR would logically make the EU Treaties unlawful under EU law.’ Eckes (2013), p. 282.
- 113.
In the chapter infra on inter-party complaints and the chapter infra on prior involvement of EU Court.
- 114.
In addition, the entire effect of the DAA seems also very similar in substantive terms with Art. 49 TEU.
- 115.
To note, there are some EU member states which place ECHR in the rank of their own constitutions. See e.g.: Miiller (2007), p. 35.
- 116.
E.g. in Ireland v. United Kingdom, application no. 5310/71, para 239, the Strasbourg Court had ruled: ‘Unlike international treaties of the classic kind, the Convention comprises more than mere reciprocal engagements between contracting States. It creates, over and above a network of mutual, bilateral undertakings, objective obligations which, in the words of the Preamble, benefit from a “collective enforcement”.’ This does of course support our statement above; Contra.: Gragl (2013), p. 102, who argues that the Convention will have the status of a normal international agreement sitting between primary law and secondary law post-accession. Such position, according to Gragl, will force the Luxembourg Court to review the legality of the secondary law not only in light of the Treaties but also the Convention.
- 117.
It would suffice for purposes of respecting Protocol 8 to the Treaties merely ‘not to touch’ upon the competences of the Treaties, however there is room made available to allow an understanding that the DAA ‘may’ change positively the understanding of Treaties of course without making any change to the competences. In addition, e.g.: Groussot et al. (2011), p. 16, puts the argument that the intention was in fact to uphold the autonomy which is translated as a prohibition on touching upon the competences, for a point that makes room for our argument to be still valid.
- 118.
Landau (2008), p. 560; See also: Shelton (2003), p. 115; Cf.: Gragl in this regard argues that Opinion 2/94 merely mirrors the concerns of the Member States on potential accession, and it may not be concluded whether the Court’s thought was as such against accession due to the potential interference to the EU law autonomy. See: Gragl (2013), p. 80.
- 119.
Contra: With regard to the status of the Convention in EU law hierarchy, Gragl raises the question of whether the Convention may gain a primary law position due to the fact that the Treaties make it obligatory on basis of Art. 6 (2) TEU EU’s accession to the Convention. Gragl responds to this question rather simply, by maintaining that even if EU would like to do that it lack the kompetenz-kompetenz to amend the treaties, as it is the Member States which are the Masters of the Treaties. Gragl goes further by arguing that EU Member States play no significant role in the accession process, and there is no reason why they should play any such role. He argues that the DAA will be an EU-exclusive international agreement on basis of Art. 218 TFEU, as the DAA will be concluded merely between the EU and Council of Europe contracting parties (but not EU Member States). Gragl in this regard notes that Member States do have only one competence: that of requiring an opinion on the DAA from the Luxembourg Court. In this regard, finally, Gragly rightly points that Art. 218 TFEU may not be drawn as a basis for primary law amendments. See: Gragl (2013), pp. 100–101. I disagree with Gragl on all points except the last one. First of all, it would not be true to maintain that EU Member States have no function in the conclusion of the DAA. As shown above, the DAA may only become effective if the decision concluding it will be ratified by EU Member States on basis of their constitutional rules. It is the TFEU providing for this derogation to the general rule on conclusion of international agreements. The Masters of the Treaties do have a constitutive role in the procedure for concluding the DAA, and, teleologically, one wonders why should the TFEU have provided for this special rule. Second, I disagree with Gragl who connects the meaning of Art. 6 (2) TEU with the status of the DAA. If one considers the status of the Convention, it does not necessarily have to be linked to Art. 218 TFEU, as the latter merely sets the procedure for the conclusion of international agreements but does not govern their status and their effect. Art. 6(2) TEU is a lex specialis to the general treaty rules on international agreements, and has its relevance and effect independent from the effect that DAA will receive on basis of Art. 218 TFEU once it gets concluded. Limiting the scope of the special rule (Art. 6.2 TEU) with the general rule (Art. 218 TFEU) seems a moot point. The latter is the rule whereas the former is the exception. Third, it is not true to regard the DAA as an EU-exclusive agreement. There are two basic reasons for that: (a) the sort of obligations in the DAA are not those relating merely to the EU competence, but also to the shared competences. The co-respondent mechanism is one good example to prove this claim. The CJEU’s Opinion 2/13, while making the argument that the Member States’ position may change in face of the Convention if their reservations become subject to a mutual responsibility decision of the Strasbourg Court (para. 227/8), merely confirms this argument. (b) There would have been no need for the member states’ to participate in the effectuation procedure for the DAA if the latter would have not been of a mixed nature. The mere fact that member states are a constituent player in the latter procedure seems to suggest that teleologically the TFEU regards them as maintaining certain competence in relation to that agreement’s substance. Gragl’s final point needs a certain answer as well. No one has ever claimed that the DAA will amend the treaties in the procedural sense, something I agree with Gragl. However, the position which Art. 6 (2) TEU may give to the Convention stands as an independent point from the effect that the conclusion of DAA will draw on EU law. The DAA may even never be concluded, however, that is absolutely irrelevant to the nature of effect which Art. 6(2) TEU recognizes to the Convention. To go further, I first use Kaczorowska (2013), p. 109, who states that EU primary law, amongst others, comprises of ‘[a]cts adopted by the Council, or the Council and the EP for the adoption of which approval by the Member States in accordance with their respective constitutional requirements is necessary’. The decision concluding the DAA and the accession procedure sits in the same procedural row as well. Kaczorowska therefore seems to support the fact that the DAA and the Convention sit within EU primary law. Second, I bring here again Opinion 2/94, wherein the Court established that EU accession to ECHR will be of a constitutional significance. It was the Luxembourg Court itself which had proclaimed this fact even before the Lisbon Treaty’s adoption. With the Lisbon Treaty there are even more arguments in support of this. Third, the fact that CJEU in Opinion 2/13 seeks a certain coordination mechanism between the Charter’s Art. 53 and ECHR—which seems to say ‘coordination’ between the two rather than ‘subordination’ of the Convention to the Charter—shows a horizontal level of arrangement between the two acts. Should it have said that such coordination needs not be made because ECHR as an international agreement would be bound to the Charter and therefore would not be able to challenge the Charter’s effectiveness, then the argument would have been that the Court is considering the incorporated ECHR as an inferior instrument compared to the Charter (primary law). However, with this assertion, the Court’s concern seems to suggest that ECHR will sit with EU primary law, otherwise the CJEU’s Melloni standard alone would have safeguarded the subordination of the Convention to the Charter and there would be no need for further mechanisms. Since the EU Court seems not convinced that Melloni’s safeguard may deliver this output, it is therefore suggesting that the Convention sits at the same level with the EU Treaties. These being some counter-arguments, this book maintains another direction of argument compared to Gragl, and, it is argued that such arguments presented in the body of this chapter appear to be valid still.
- 120.
See e.g. European Parliament, Resolution of 19 May 2010 sub. 1, which requests that the accession effects not hinder the autonomy of EU law and its Court’s jurisdiction; See also: Franklin (2010–2011), p. 159 (‘As a consequence of this, the ECJ would no longer be the ultimate arbiter of the lawfulness of EU action alleged to be in breach of human rights, thus signifying a potentially major incursion into its jurisdiction.’).
- 121.
Cf.: In Gragl’s view, with the Convention taking a ‘mezzanine’ status in EU law, there may appear clash of principles between Art. 53 ECHR—which portrays the Convention as the minimum standard as it grants discretion to Member States to apply a higher standard of protection—and Art. 53 ChFR which establishes that the standard of protection provided by the Charter may not restrict the level of protection afforded, amongst others, by the Convention system. The latter, according to Gragl, allows Member States to grant higher protection that the level provided by the Charter. In view of this, Gragl rightly raises the question that the space to provide provided to Member States to provide higher protection may certainly take precedence over the EU law primacy principle as well. Such scenario would practically allow Member States to apply the higher standard by superseding the EU-law primacy limitations, therefore harming the uniformity of EU law and its effectiveness. Gragl rightly argues that the more extensive protection doctrine naturally contradicts with the EU-law primacy doctrine. Gragl also questions why should then the EU accede to the ECHR if it was ‘punished’ to comply with the principle of primacy of EU law to the detriment of more extensive protection that the status quo. See: Gragl (2013), pp. 103–105. This is also an argument raised by the EU Court in its Opinion 2/13.
- 122.
A similar, but more general argument, may be also found at: Sera (1996), p. 177.
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Korenica, F. (2015). Status of ECHR and DAA in EU Legal Order. In: The EU Accession to the ECHR. Springer, Cham. https://doi.org/10.1007/978-3-319-21759-8_5
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