Fundamental rights after Opinion 2/13. Should we prepare for the worst?

Opinion 2/13, on the compatibility with EU Law of the draft agreement of accession of the EU to the ECHR, came as a surprise to many, but not for those who attended the hearing of the case. The hostility of the Court towards the accession draft treaty became very visible then, and many of the agents and observers left the salle d’audience with the feeling that things were about to turn for the worse. And they were dead right.

I believe in the Court’s ability to adapt itself in subtle, clever and successful ways to very difficult situations. Gauweiler is a very good example of how the Court does this, keeping its calm, not overacting, always in control, firm but cooperative (but let’s wait for the Bundesverfassungsgericht’s decision). After all, the Court is a wise institution that stands today before us, after six decades of history and with its prestige almost untouched, thanks to its political acuteness and its ability to face hard cases with a strategic approach.

Therefore, when I first read Opinion 2/13 I believed that the Court would eventually find the way to fix the mess that the accession had turned into. After some reflection, I came to the conclusion that the Court might be trying to look at fundamental rights from a different angle, and Opinion 2/13 could be the first (or maybe the second) step in the way.

Allow me to explain myself.

The objections of the Court to the draft accession treaty are fairly reasonable (with some exceptions that sound too paranoid, like the Melloni caveat or the objection to Protocol 16, which has hardly even begun the ratification process!), but it is obvious that the Court is killing the proposal. It is sending a very clear message: accession is not in our interest, we have lived happily without it and that is how we want things to stand.

In a certain way, the Court has a point.

The ECHR was envisaged as a safety valve for nation States that had proved their ability and determination to breach human rights. Of course, nation States have the means to be serious human rights offenders: they have policemen, prisons, tanks, armies, even nuclear weapons in some cases, and they can end up being ruled by tyrants, even by democratic means. So, overall, the ECHR is not such a bad idea.

However, the EU has no policemen, no prisons, no tanks, no armies, certainly no nuclear weapons, and it can hardly become the victim of a coup d’état. It can do a lot of harm by way of regulation, it can be a human rights offender through law, but not by force or coercion. Therefore, what the EU needs is a good Court entrusted with decent standards of human rights protection to ensure that the regulations enacted by the organization are properly aligned with human rights standards. And if that Court has the counterweight of national Constitutional courts that act as indirect watchmen of the EU’s regulatory action, we have a pretty good deal. Why accede to the ECHR, then?

For reasons that would make this post way too long, I believe accession is positive for the EU, mostly because it is a source of legitimacy and is a coherent step with the EU’s purpose of becoming a composite and well-functioning federal organization. But I admit that the reasons justifying the EU’s polite but clear separation from the ECHR have force.

However, in order for this “separation thesis” to work out, the EU needs a Court that takes fundamental rights not only seriously, but extremely seriously. This is not a matter of taste, it is a conditio sine qua non, because otherwise the accession would become more necessary than ever. And this might be the message that the Court is sending: we need no accession, it really is a nuisance, let’s live without it, because it is actually me, the Court of Justice, the jurisdiction in charge of keeping EU institutions and Member States implementing EU Law well aligned with human rights standards.

The Court has the opportunity now to prove that such a strategy can work. By killing (for the time being) the draft agreement, it can start delivering important human rights decisions, proving it is up to the task. It can actually prove that it does the job even better than Strasbourg, developing a braver stance in delicate areas (freedom of information in the Internet, for example, after the disappointing Delfi vs. Estonia), construing a theoretically sound doctrine of proportionality for restrictions, or simply by putting human rights at the forefront of its case-law. This could make Strasbourg look irrelevant in the eyes of Member States and citizens, and thus justify putting accession on hold.

However, some of the judgments of the Court issued after Opinion 2/13 are far from confirming my narrative of the Court’s strategy.

First, there were some extremely worrying decisions from the Court before Opinion 2/13 that would pass the Strasbourg scrutiny with difficulty. To put but two examples: G and R, on the right to be heard before forced internment orders (using trademark and state aid precedents to solve a case that involved a deprivation of individual freedom!); Gbagbo, on the service of Council decisions involving freezing of assets; or Spasic, on ne bis in idem and situations of “criminal jurisdiction purchasing”.

Second, but more worryingly, the dubious case law continued after Opinion 2/13. Léger is a good example: a blanket prohibition applied to homosexuals to donate blood was deemed, in principle, compatible with EU Law. Something similar has been happening with the Court’s case law on citizenship: in contrast with Strasbourg (and even its own case-law), the Court has completely lost the taste for solving free movement of persons cases in light of fundamental rights. Even when those cases concern the expulsion from the territory of a Member State (a situation that has been traditionally under the radar of Strasbourg), the Court is now deciding that such situations have nothing to do with fundamental rights.

To make things worse (and third), it seems as if the Court is developing a tendency to restrict the scope of the Charter of Fundamental Rights, implementing at times a strict interpretation of article 51.1 of the Charter and of the Akerberg Fransson judgment. This is not very visible in the judgments (but see Marcos Torralbo), but it certainly is in the Orders, where cases like Siragusa, standing in the limits of what is “implementation” of EU Law, have been pushed outside the domains of the Court’s jurisdiction. This raises a funny paradox, because by way of a restrictive  interpretation of article 51.1 of the Charter the Court is indirectly recognizing the jurisdiction of Strasbourg, thus confirming the importance of the ECHR and, therefore, the need for the EU to be a part of it.

There are, however, reasons to be optimistic. The Court has delivered very positive judgments in cases like A, on asylum seekers subject to detailed questioning to prove sexual orientation. Its interpretation of the right to an effective remedy is still contributing to force Member States to take EU rights seriously in the course of national proceedings. The Court’s position on data protection and electronic communications is well known by now.

So what is the strategy of the Court? Where is the Court actually heading to in the crucial area of fundamental rights?

I admit I am confused. If the post-accession scenario was intended to be one in which the Court became a serious human rights jurisdiction, thus justifying the irrelevance of accession, I am not sure if the first six months after Opinion 2/13 show the Court’s willingness to follow that path. Maybe it is just too soon to draw conclusions, but in the past the Court has been very quick in showing its intentions (from Ruiz Zambrano to MacCarthy, only a few weeks went by).

Or maybe we should get ready for the worse: the Court’s firm intention to veto all efforts of accession combined with a reluctance to become a serious human rights court. That would certainly be a catastrophe: it would become untenable for citizens, and as a result it would force Strasbourg to put an end to its Bosphorus case-law and start an era of unprecedented conflict between both European courts. A period that will come to an end in a later Treaty reform, in which accession would be agreed and imposed by all Member states despite Opinion 2/13. The next time that the Court has the tempation to veto the accession, it will have to strike out the Treaty rule imposing accession by constitutional mandate. And that, of course, will be a much tougher sell.

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