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The Reinterpretation of TFEU Article 344 in Opinion 2/13 and Its Potential Consequences

Published online by Cambridge University Press:  06 March 2019

Stian Øby Johansen

Extract

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On 18 December 2014 the Court of Justice of the European Union (CJEU) delivered Opinion 2/13 and stunned the legal world by declaring that the Draft Agreement on the Accession of the EU to the European Convention on Human Rights (the Accession Agreement) was incompatible with the constituent treaties of the Union. Although some experts, admittedly, had been skeptical about certain aspects of Draft Accession Agreement, no one seems to have expected an opinion so critical and uncompromising. The opinion has consequently received widespread disapproval in the EU legal blogosphere.

Type
Special Section - Opinion 2/13: The E.U. and the European Convention on Human Rights
Information
German Law Journal , Volume 16 , Issue 1 , 01 March 2015 , pp. 169 - 178
Copyright
Copyright © 2015 by German Law Journal GbR 

References

1 References to the CJEU in the following also refer, where appropriate, to its predecessor, the Court of Justice of the European Communities.Google Scholar

2 Opinion Pursuant to Article 218(11) TFEU, CJEU Case C-2/13 (Dec. 18, 2014), http://curia.europa.eu/ [hereinafter Opinion 2/13].Google Scholar

3 Council of Europe, Draft Agreement on the Accession of the EU to the European Convention on Human Rights, Fifth Negotiation Meeting Between the CDDH Ad Hoc Negotiation Group & the Eur. Comm'n on the Accession of the Eur. Union to the Eur. Conv. on H.R. app. 1 (2013).Google Scholar

4 See Lock, Tobias, Walking on a Tightrope: The Draft Accession Agreement and the Autonomy of the EU Legal Order, 48 Common Mkt. L. Rev. 1025 (2011).Google Scholar

5 See, e.g., Lock, Tobias, Oops! We Did it Again – the CJEU's Opinion on EU Accession to the ECHR, Verfassungsblog (Dec. 18, 2014), http://www.verfassungsblog.de/en/oops-das-gutachten-des-eugh-zum-emrk-beitritt-der-eu/; Michl, Walther, Thou Shalt Have No Other Courts Before Me, Verfassungsblog (Dec. 23, 2014), http://www.verfassungsblog.de/en/thou-shalt-no-courts/; Stian Øby Johansen, Opinion 2/13: A Bag of Coal From the CJEU, Øby-kanalen (Jan. 10, 2015), https://obykanalen.wordpress.com/2015/01/10/opinion-213-a-bag-of-coal-from-the-cjeu/; O'Neill, Aidan, Opinion 2/13 on EU Accession to the ECHR: The CJEU as Humpty Dumpty, Eutopialaw (Dec. 18, 2014), http://eutopialaw.com/2014/12/18/opinion-213-on-eu-accession-to-the-echr-the-cjeu-as-humpty-dumpty/; Peers, Steve, The CJEU and the EU's Accession to the ECHR: A Clear and Present Danger to Human Rights Protection, EU Law Analysis (Dec. 18, 2014), http://eulawanalysis.blogspot.no/2014/12/the-cjeu-and-eus-accession-to-echr.html.Google Scholar

6 As evidenced by the many and diverse contributions concerning Opinion 2/13 in this issue of the German Law Journal.Google Scholar

7 The other four reasons being that (1) the Accession Agreement is liable adversely to affect the specific characteristics and the autonomy of EU law, (2) the Accession Agreement does not lay down arrangements for the operation of the co-respondent mechanism that enable the specific characteristics of Union law to be preserved, (3) the Accession Agreement does not lay down arrangements for the prior involvement of the CJEU that enable the specific characteristics of Union law to be preserved, and (4) the Accession Agreement fails to have regard to the specific characteristics of Union law with regard to the judicial review of conduct on part of the EU under in Common Foreign and Security Policy matters. See Opinion 2/13 para. 258.Google Scholar

8 Comm'n v. Ireland (MOX Plant), CJEU Case C-459/03, 2006 E.C.R. I-04635 [hereinafter MOX Plant].Google Scholar

9 European Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, 213 U.N.T.S. 222.Google Scholar

10 Consolidated Version of the Treaty on European Union, Oct. 26, 2012, 2012 O.J. (C 326) 13 [hereinafter TEU].Google Scholar

11 Protocol No. 8 to the Treaty on European Union, Dec. 13 2007, 2012 O.J. (C 326) 273.Google Scholar

12 Id. Google Scholar

13 Consolidated Version of the Treaty on the Functioning of the European Union art. 344, May 9, 2008, 2008 O.J. (C 115) 47 [hereinafter TFEU].Google Scholar

14 Opinion 2/13 at para. 202; MOX Plant at para. 169.Google Scholar

15 Opinion 2/13 at para. 201; see also the cases mentioned infra note 16.Google Scholar

16 Notable examples include: Opinion Pursuant to Article 228(1) of the Draft Agreement Establishing a European Laying-up Fund for Inland Waterway Vessels, CJEU Case C-1/76, 1977 E.C.R. 741; Opinion Pursuant to Article 228(1) of the Draft Agreement Between the Community and the Countries of the European Free Trade Association Relating to the Creation of the European Economic Area (I), CJEU Case C-1/91, 1991 E.C.R. I-06079; Opinion Pursuant to Article 228(1) of the Draft Agreement Between the Community and the Countries of the European Free Trade Association Relating to the Creation of the European Economic Area (II), CJEU Case C-1/92 1992 E.C.R I-02821; Opinion Pursuant to Article 300(6) of the Proposed Agreement Between the European Community and Non-Member States on the Establishment of a European Common Aviation Area, CJEU Case C-1/00, 2002 E.C.R. I-03493; Opinion Pursuant to Article 218(11) TFEU Draft Agreement, Creation of a Unified Patent Litigation System, CJEU Case C-1/09, 2011 E.C.R. I-01137.Google Scholar

17 See, e.g., Opinion Pursuant to Article 228(1) of the Draft Agreement Between the Community and the Countries of the European Free Trade Association Relating to the Creation of the European Economic Area (I), CJEU Case C-1/91, 1991 E.C.R. I-06079, para. 85; Opinion Pursuant to Article 218(11) TFEU Draft Agreement, Creation of a Unified Patent Litigation System, CJEU Case C-1/09, 2011 E.C.R. I-01137, para. 63.Google Scholar

18 Opinion 2/13 at paras. 201–14.Google Scholar

19 Schrijver, Nico, The MOX Plant Case – A Litigation Saga Without a Pronouncement on the Merits, in The MOX Plant Case (Ireland v. United Kingdom): Record of the Proceedings 2001-2008 1–18, 2 (Permanent Court of Arbitration ed., 2010).Google Scholar

20 Id.; MOX Plant at para. 21.Google Scholar

21 Schrijver, , supra note 19, at 2.Google Scholar

22 Id. at 2–3; MOX Plant at paras. 30–48.Google Scholar

23 Convention for the Protection of the Marine Environment of the North-East Atlantic, Sept. 22, 1992, 32 I.L.M. 1069.Google Scholar

24 United Nations Convention on the Law of the Sea, Dec. 10, 1982, 1833 U.N.T.S. 3 [hereinafter UNCLOS].Google Scholar

25 Schrijver, , supra note 19, at 10; MOX Plant at paras. 53–54.Google Scholar

26 MOX Plant at paras. 55–57.Google Scholar

27 Id. at para. 184.Google Scholar

28 Opinion 2/13 at paras. 201–14.Google Scholar

29 Id. at para. 201.Google Scholar

30 Id. Google Scholar

31 Id. at para. 203.Google Scholar

32 MOX Plant at para. 123.Google Scholar

33 Opinion 2/13 at para. 205 (emphasis added).Google Scholar

34 MOX Plant at paras. 124–25 (emphasis added).Google Scholar

35 Repeated by the CJEU in MOX Plant at para. 132.Google Scholar

36 MOX Plant at para. 128.Google Scholar

37 It might even be argued that neither UNCLOS Article 282 fulfills this requirement, as the final subclause of that article provides that forms of dispute resolution other than those laid down in its Part XV shall be used only “unless the parties to the dispute otherwise agree.” It is thus possible for two member states to together submit a case concerning both Union law and the UNCLOS to a dispute resolution mechanism established under UNCLOS Part XV. This would of course entail a breach of Union law, notably TFEU Article 344 and TEU article 4(3), but that would not preclude the jurisdiction of the chosen Part XV dispute resolution mechanism.Google Scholar

38 Following accession there would potentially be such a conflict between ECHR Article 55 and TFEU Article 344. However, this conflict is solved by Article 5 of the Accession Agreement, supra, note 3, which vacates the obligation under ECHR Article 55. It provides that proceedings before the CJEU “shall be understood as constituting neither procedures of international investigation or settlement within the meaning of Article 35, paragraph 2.b of the [ECHR], nor means of dispute settlement within the meaning of Article 55 of the [ECHR].” See also Opinion 2/13 at paras. 206–07.Google Scholar

39 Opinion 2/13 at para. 208 (emphasis added).Google Scholar

40 Id. at para. 212.Google Scholar

41 Id. at para. 213.Google Scholar

42 This is not only a departure from the CJEU's earlier case-law, as just demonstrated, but also in clear contrast to the views of the General Advocate. See View of Advocate General Kokott at paras. 107–20, Opinion Procedure 2/13, CJEU Case C-2/13 (June 13, 2014), http://curia.europa.eu/.Google Scholar

43 Opinion 2/13 at para. 258.Google Scholar

44 See supra note 7 and accompanying text.Google Scholar

45 See Protocol No. 8 to the Treaty on European Union, Dec. 13 2007, 2012 O.J. (C 326) 273.Google Scholar

46 See Convention for the Protection of the Marine Environment of the North-East Atlantic, Sept. 22, 1992, 32 I.L.M. 1069.Google Scholar

47 Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, Jun. 25, 1998, 2162 U.N.T.S. 447. Article 16 contains an opt-in clause for compulsory dispute resolution, with the choice of either the ICJ or arbitration as the forum. Some EU member states have opted in.Google Scholar

48 Convention on the Transboundary Effects of Industrial Accidents, Mar. 17, 1992, 2105 U.N.T.S. 457. Article 21 contains an opt-in clause for compulsory dispute resolution, with the choice of either the ICJ or arbitration as the forum. Some EU member states have opted in.Google Scholar

49 Customs Convention on the International Transport of Goods Under Cover of TIR Carnets, Nov. 14, 1975, 1079 U.N.T.S. 89. Article 57 contains a compulsory arbitration clause, albeit allowing for reservations. Many EU member states, though, are parties without reservations as to arbitration.Google Scholar

50 United Nations Convention against Transnational Organized Crime, Sept. 29, 2003, 2225 U.N.T.S. 209. Article 35 contains a compulsory dispute resolution clause, with the choice of either the ICJ or arbitration as the forum. Reservations against this clause are allowed, but several EU member states are parties without reservation. The UNCLOS might also serve as an example. See supra note 38 and accompanying text.Google Scholar

51 View of Advocate General Kokott, supra note 42, at para. 117 (emphasis added).Google Scholar

52 This follows from customary international law, as codified in the Vienna Convention on the Law of Treaties Between States and International Organizations or Between International Organizations, UN Doc. A/CONF.129/15 art. 46 (Mar. 21, 1986) (not in force). See also European Parliament v. Council and Comm'n (Passenger Name Records), CJEU Joined Cases C-317/04 and C-318/04, 2006 E.C.R. I-04721, para. 73.Google Scholar

53 See European Parliament v. Council and Comm'n (Passenger Name Records), CJEU Joined Cases C-317/04 and C-318/04, 2006 E.C.R. I-04721, paras. 71–74.Google Scholar

54 Peers (supra note 5) argues that accession is not desirable under the conditions of Opinion 2/13. Besslink suggests that amending the constituent treaties of the Union would be the preferred solution. See Leonard F. M. Besslink, Acceding to the ECHR Notwithstanding the Court of Justice Opinion 2/13, Verfassungsblog (Dec. 23, 2014), http://www.verfassungsblog.de/en/acceding-echr-notwithstanding-court-justice-opinion-213/.Google Scholar

55 Opinion 2/13 at para. 213.Google Scholar

56 For an overview of this practice, and a typology of “disconnection clauses”, see Kamala Dawar, Disconnection Clauses: An Inevitable Symptom of Regionalism? (Online Proceedings of the Society of International Economic Law Working Paper No. 2010/11, 2010), http://papers.ssrn.com/abstract=1632433.Google Scholar