Adjudicating Europe

On 7 July 2010, the official talks have started on the European Union’s accession to the European Convention of Human Rights between the Commission and the Steering Committee for Human Rights. Already on 26 May 2010, the Committee of Ministers of the Council of Europe gave an ad-hoc mandate to this Steering Committee to elaborate with the EU the necessary legal instrument for the EU’s accession to the ECHR. Some days later on 4 June, the EU Justice Ministers gave the Commission the mandate to conduct the negotiations on their behalf. For Viviane Reding (Vice-president of the European Commission), the 7th of July 2010 is “a truly historic moment. We are now putting in place the missing link in Europe’s system of fundamental rights protection, guaranteeing coherence between the approaches of the Council of Europe and the European Union”.

But what is the position of the ECJ on the issue of accession?

The Court has published a very instructive five pages long ‘discussion document’ on certain aspects of the accession.

This document emphasized very very much the specific characteristics of the Union and its legal order (see in particular paragraphs 4, 5, 6, 8, 9 and 10). The Courts seems to be particularly worried of preserving its interpretative autonomy under Article 19 TEU and ensuring the proper functioning of the preliminary ruling procedure under Article 267 TFEU.

Morceaux choisis (8, 9 and 10):

“it is […] for the Court of Justice alone, in an appropriate case, to declare an act of the Union invalid. That prerogative is an integral part of the competence of the Court of Justice, and hence of the ‘powers’ of the institutions of the Union, which, in accordance with Protocol No 8, must not be affected by accession…in order to preserve this characteristic of the Union’s system of judicial protection, the possibility must be avoided of the European Court of Human Rights being called on to decide on the conformity of an act of the Union with the Convention without the Court of Justice first having had an opportunity to give a definitive ruling on the point”.

…With respect more particularly to the preliminary ruling procedure provided for in Article 267 TFEU, it may be pointed out in this connection that its method of operation, as a result of its decentralised nature which means that the national courts have general jurisdiction in respect of European Union law, has given altogether satisfactory results for more than half a century, even though the Union now consists of 27 Member States. However, it is not certain that a reference for a preliminary ruling will be made to the Court of Justice in every case in which the conformity of European Union action with fundamental rights could be challenged. While national courts may, and some of them must, make a reference to the Court of Justice for a preliminary ruling, for it to rule on the interpretation and, if need be, the validity of acts of the Union, it is not possible for the parties to set this procedure in motion. Moreover, it would be difficult to regard this procedure as a remedy which must be made use of as a necessary preliminary to bringing a case before the European Court of Human Rights in accordance with the rule of exhaustion of domestic remedies”.

Not so easy the accession after all, right?