The Accession of the European Union to the European Convention on Human Rights

362 Pages·2013·1.617 MB·English

by  Paul Gragl

THE ACCESSION OF THE EUROPEAN
UNION TO THE EUROPEAN CONVENTION
ON HUMAN RIGHTS
After more than 30 years of discussion, negotiations between the Council of Europe
and the European Union on the EU’s accession to the European Convention on
Human Rights have resulted in a Draft Accession Agreement. This will allow the
EU to accede to the Convention within the next couple of years. As a consequence,
the Union will become subject to the external judicial supervision of an interna-
tional treaty regime. Individuals will also be entitled to submit applications against
the Union, alleging that their fundamental rights have been violated by legal acts
rooted in EU law, directly to the Strasbourg Court.
As the first comprehensive monograph on this topic, this book examines the
concerns for the EU’s legal system in relation to accession and the question of
whether and how accession and the system of human rights protection under
the Convention can be effectively reconciled with the autonomy of EU law. It
also takes into account how this objective can be attained without jeopardising
the current system of individual human rights protection under the Convention.
The main chapters deal with the legal status and rank of the Convention and the
Accession Agreement within Union law after accession; the external review of EU
law by Strasbourg and the potential subordination of the Luxembourg Court; the
future of individual applications and the so-called co-respondent mechanism; the
legal arrangement of inter-party cases after accession and the presumable clash
of jurisdictions between Strasbourg and Luxembourg; and the interplay between
the Convention’s subsidiarity principle (the exhaustion of local remedies) and the
prior involvement of the Luxembourg Court in EU-related cases.
The analysis presented in this book comes at a crucial point in the history of
European human rights law, offering a holistic and detailed enquiry into the EU’s
accession to the ECHR and how this move can be reconciled with the autonomy
of EU law.
Volume 39 in the series Modern Studies in European Law
Modern Studies in European Law
Recent titles in this series:
The Cyprus Issue: The Four Freedoms in a Member State under Siege
Nikos Skoutaris
The European Union and Global Emergencies: A Law and Policy Analysis
Edited by Antonis Antoniadis, Robert Schütze and Eleanor Spaventa
Public Liability in EU Law: Brasserie, Bergaderm and Beyond
Pekka Aalto
Professional Services in the EU Internal Market: Quality Regulation and Self-Regulation
Tinne Heremans
Environmental Integration in the EU’s External Relations:
Beyond Multilateral Dimensions
Gracia Marín Durán and Elisa Morgera
The Constitutional Dimension of European Criminal Law
Ester Herlin-Karnell
EU Counter-Terrorism Law: Pre-Emption and the Rule of Law
Cian Murphy
Children and the European Union: Rights, Welfare and Accountability
Helen Stalford
Federalism in the European Union
Edited by Elke Cloots, Geert De Baere and Stefan Sottiaux
Toward a Prosecutor for the European Union Volume 1: A Comparative Analysis
Edited by Katalin Ligeti
Empowerment and Disempowerment of the European Citizen
Edited by Michael Dougan, Niamh Nic Shuibhne and Eleanor Spaventa
Legal Reasoning and the European Court of Justice
Gunnar Beck
Lawyering Europe: European Law as a Transnational Social Field
Edited by Antoine Vauchez and Bruno de Witte
Services and the EU Citizen
Edited by Frank S Benyon
For the complete list of titles in this series, see
‘Modern Studies in European Law’ link at
www.hartpub.co.uk/books/series.asp
The Accession of the European
Union to the European Convention
on Human Rights
Paul Gragl
OXFORD AND PORTLAND, OREGON
2013
Published in the United Kingdom by Hart Publishing Ltd
16C Worcester Place, Oxford, OX1 2JW
Telephone: [phone]
Fax: [phone]
E-mail: [email protected]
Website: http://www.hartpub.co.uk
Published in North America (US and Canada) by
Hart Publishing
c/o International Specialized Book Services
920 NE 58th Avenue, Suite 300
Portland, OR 97213-3786
USA
Tel: [phone] or toll-free: (1) 800 944 6190
Fax: [phone]
E-mail: [email protected]
Website: http://www.isbs.com
© Paul Gragl 2013
The editors and contributors have asserted their right under the Copyright,
Designs and Patents Act 1988, to be identifi ed as the authors of this work.
All rights reserved. No part of this publication may be reproduced, stored in a retrieval
system, or transmitted, in any form or by any means, without the prior permission of Hart
Publishing, or as expressly permitted by law or under the terms agreed with the appropriate
reprographic rights organisation. Enquiries concerning reproduction which may not be
covered by the above should be addressed to Hart Publishing Ltd at the address above.
British Library Cataloguing in Publication Data
Data Available
ISBN: 978-1-84946-460-4
Typeset by Hope Services, Abingdon
Printed and bound in Great Britain by
MPG Books Group Ltd
For Jennifer and My Parents

Acknowledgements
It is not an easy thing to say thank you. In order to express my gratitude for the
support in a work like this book, I would like to say a sincere and thousandfold
‘thank you’ to all the people who directly and indirectly supported and helped
me finish my work. I will try hard to reciprocate not only with words, but with
my own support for these people in the future. But beyond that, it is difficult not
to forget any colleagues or friends (sometimes those two categories overlap of
course) who accompanied me along the way.
The first thank you goes to Renate Kicker. Without her, my doctoral thesis and
thus the book at hand would most probably have been of a completely different
nature. On my second day at the Institute of International Law of the University of
Graz, she approached me and suggested the very topic of my thesis, the European
Union’s accession to the European Convention on Human Rights. She therefore
gave my work the initial spark for future development. Any comments or com-
plaints as to why I did not choose another topic must consequently be addressed
to her, not me. Seriously, all joking aside, thank you again for such a wonderful
and intriguing topic which accompanied me for two years and eventually became
an important part of my life.
I also owe my gratitude to Wolfgang Benedek and Kirsten Schmalenbach, my
doctoral thesis supervisors. They both are, in a manner of speaking, my interna-
tional law ‘mentors’ and their influence made me what I am today, a sincere and
diligent international law devotee. During my graduate studies, my interest in
international law was mainly deepened by Kirsten Schmalenbach’s classes on vari-
ous topics in the field of International Law, European Union law and the intricate
interplay of those two legal systems. Moreover, she supervised my diploma thesis
on the US Alien Tort Claims Act and thus helped me finish my legal studies with
excellent grades not only on my diploma thesis, but also on several classes in the
final and specialised phase of my studies. Thank you very much for your inspir-
ing help. I guess I would not be what I am today without your help. Beyond that,
I have had the opportunity to work as a research and teaching assistant at the
Institute of International Law and International Relations with the nicest and
most reputable superior I have ever worked with, Wolfgang Benedek. By employ-
ing me, he gave me the opportunity to continue and improve my legal knowledge
on a daily basis, mostly by doing research (both thesis-related and non-thesis-
related) and by working with students, which was an entirely new experience for
me. He always gave me sufficient space and time for the work on my thesis and,
at the same time, effectively integrated me into the Institute and its team, for
which I am sincerely grateful. Furthermore, I would like to express my gratitude
and appreciation for his help and constant support in all matters, again for both
thesis-related and non-thesis-related aspects.
viii Acknowledgements
Another big thank you goes to Tobias Lock whom I became acquainted with
through his academic articles on the very topic of this book. A personal meet-
ing with him at the IHR Conference at the University College London in May
2011 gave me a major breakthrough in my work and effectively helped me finish
the substantial parts of my thesis and this book throughout the following sum-
mer. Therefore, I would like to say thank you for showing me the argumentative
Ariadne’s thread through the multi-dimensional maze of European human rights
protection. A big part of this book’s structure is owed to Tobias Lock’s help and
support.
Besides the purely academic help, I would also like to thank my dear colleagues
Julia Cortolezis, Elisabeth Hoffberger, Heike Montag, Matthias C Kettemann and
Reinmar Nindler for sharing hundreds of coffees while talking shop. With them, I
enjoyed the dearly needed coffee, tea and lunch breaks which helped me reorgan-
ise my overloaded brain before resuming my work.
A huge amount of thanks is owed to my lovely and enchanting girlfriend
Jennifer Kaier who endured my stress and (I guess, in her view extremely boring)
explications about this book. Not only did she patiently survive this time, she
also provided me with constant moral support and helped me with the linguistic
subtleties and delicacies of the English language by proofreading my thesis and
this book (please note that she does not study law and that her enthusiasm for
reading more than 270 pages of legal stuff was inversely proportional to this fact).
Thank you so much my dear Jenny for all your help.
I also owe a lot of gratitude to the people of Hart Publishing, Oxford, especially
to Rachel Turner for her prompt and professional help in our frequent email cor-
respondence, and to Richard Hart for our personal meeting in August 2012. This
also includes the anonymous reviewer of this book who helped me during the
final round of drafting.
My sincerest apologies go to my friends Stefan Kreiner and Herwig Brunnegger,
with whom I could not spend as much time as I wanted to while I was writing
this book.
Last, but of course not least, thank you to my parents who have always supported
me, both financially and morally, during my studies (which took me, altogether,
more than 10 years to finish). Thank you for believing in me this whole time.
Paul Gragl, November 2012
Contents
Acknowledgements ...................................................................................................vii
Table of Figures .......................................................................................................xiii
List of Abbreviations..................................................................................................xv
Table of Cases .........................................................................................................xvii
Table of Legislation...............................................................................................xxvii
PART I: INTRODUCTION—A TALE OF TWO COURTS ...................................1
1. Setting the Scene for Accession .........................................................................3
I. The EU and the European Convention on Human Rights ..........................3
II. Accession and Autonomy: The Research Question of this Book.................7
III. A Caveat on Legal Defi nitions .....................................................................11
2. Scope of this Book ............................................................................................13
I. A Survey of the Status Quo .........................................................................13
II. The Shape of Things to Come .....................................................................14
III. Conclusions and Outlook ............................................................................16
PART II: THE AUTONOMY OF EUROPEAN UNION
LAW VERSUS INTERNATIONAL LAW AND COURTS .....................17
3. The Notion of Legal Autonomy .......................................................................19
I. The Legal Framework: The CJEU’s Exclusive Jurisdiction ........................19
II. Accession and Autonomy: Justifi ed Concerns or Much
Ado about Nothing? .....................................................................................22
III. The Union’s Legal Autonomy and International Law ................................26
4. The EU and International Courts and Tribunals ...........................................31
I. European Union Law at Risk: The CJEU and the EEA Court ...................32
A. CJEU Opinion 1/91 ...............................................................................32
B. Aftermath: A Question of Legal Hierarchy ..........................................34
II. Competing Jurisdictions: The MOX Plant Case .........................................36
A. Factual Background and Procedures ....................................................37
B. The UNCLOS Arbitral Decision ...........................................................39
C. The Judgment of the Court of Justice of the European Union ...........42
III. Legal Analysis ...............................................................................................44
A. Elements of the European Union’s Legal Autonomy ...........................44
B. Protecting Legal Autonomy and Exclusive Jurisdiction ......................45
C. Limiting the Choice and Utilisation of International Courts .............46
D. Constraining the Jurisdiction of International
Courts and Tribunals ............................................................................48
x Contents
5. A Special Case: The Court of Justice of the European Union
and the European Court of Human Rights ....................................................50
I. The Convention and the EU: A View from Luxembourg ..........................51
A. Luxembourg’s Case Law: Recourse to the Convention .......................51
B. General Principles Derived from the Convention as
Part of EU Law ......................................................................................53
C. Consequences for the EU Member States ............................................55
D. The Charter of Fundamental Rights: Incorporation
of the Convention .................................................................................58
II. Violations of the Convention by EU Law:
The Strasbourg Perspective .........................................................................64
A. Inescapable Obligations of the Member States ....................................64
B. The Bosphorus Case: Strasbourg’s Solange Approach .........................69
III. Opinion 2/94: Obsolete Concerns or Autonomy at Risk? .........................76
A. The Statements of the Governments ....................................................76
B. Luxembourg’s Opinion .........................................................................79
6. The EU, International Law and International Courts:
An Anticipating Assessment for Accession .....................................................82
I. Lessons of the Past .......................................................................................82
II. Questions for the Future .............................................................................85
PART III: THE ROAD FROM LUXEMBOURG TO STRASBOURG:
RECONCILING ACCESSION AND AUTONOMY .......................87
7. The Status of the Accession Agreement and
the Convention after Accession .......................................................................89
I. The Legal Basis: Article 218 TFEU and the Court of Justice .....................89
II. The Need for an Accession Agreement .......................................................91
A. Preserving the Convention System .......................................................91
B. Scope of Accession and Amendments to the Convention ...................93
III. The Status of the Convention and the Agreement in EU Law ...................97
A. The Status of International Agreements within Union Law ...............97
B. The Convention as Part of Primary Law? ............................................99
C. Legal Consequences of the Convention’s Mezzanine Status .............102
IV. Interim Conclusions ..................................................................................110
8. External Review by Strasbourg: A Hierarchy of Courts? .............................113
I. External Review vs Autonomy: The Legal Issue Situated .........................113
II. A Binding Interpretation of Union Law by Strasbourg? ..........................114
A. Assessing Domestic Law under the Convention ................................114
B. European Union Law as ‘Domestic Law’ ............................................118
C. Ramifi cations for the European Union’s Legal Autonomy ...............121
III. European Union Law in Violation of the Convention .............................125
A. The EU’s ‘Constitutional’ Foundation: Primary Law ........................125
B. European Union Legislation: Secondary Law ....................................132
IV. Interim Conclusions ..................................................................................135