Renegotiating EU accession to the ECHR: new perspectives and better chances

Back to the drawing board

Much has already been written in the blogospere about the CJEU's Opinion 2/13 on the draft accession agreement on the accession of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms. These days it seems easier to keep Greece on board in the eurozone than to solve the many fundamental and technical problems that the CJEU discovered in the draft agreement. 

I will discuss accession from a different angle: the perspective of a national judge in one of the Member States of the EU. The CJEU considers the 'principle of mutual trust' between the Member States of 'fundamental importance' in EU law. I can not speak on behalf of my European colleague judges, but in my experience the concept of mutual trust is rather controversial on the work floors of the Member States courts. I find it remarkable that Opinion 2/13 on the one hand is very concerned about the effectiveness of EU law, but that  on the other hand the CJEU does not take into consideration (not even implicitly) the doubts about the mutual trust doctrine of national judges that may seriously hamper the effective application of EU law in practice. 

We should not forget that the vast majority of disputes about European law is not being dealt with in Luxembourg but by judges in the Member States. Most of the time they are the 'real' EU-judges (references for a preliminary ruling are relatively rare). 

Therefore, when negotiators find courage to return to their drawing boards, they should not focus on the systemic problems put forward by the CJEU without - at the same time - keeping an eye on the realities in the Member States courts. It is not only the CJEU that must be convinced of the conditions for accession of the EU to the ECHR. The EU-judges in the Member States are an equally important factor from the perspective of 'effet utile'.

In my view, the effective application of EU law in the Member States will be better off with than without the possibility of (some sort of) review by the ECHR that meets legitimate concerns of national courts.

The CJEU on mutual trust 

Paragraphs 191-195 of Opinion 2/13 deal with the 'principle of mutual trust'  in EU law and read as follows:

191. (-) it should be noted that the principle of mutual trust between the Member States is of fundamental importance in EU law, given that it allows an area without internal borders to be created and maintained. That principle requires, particularly with regard to the area of freedom, security and justice, each of those States, save in exceptional circumstances, to consider all the other Member States to be complying with EU law and particularly with the fundamental rights recognised by EU law (see, to that effect, judgments in N. S. and Others, C‑411/10 and C‑493/10, EU:C:2011:865, paragraphs 78 to 80, and Melloni, EU:C:2013:107, paragraphs 37 and 63). 

192. Thus, when implementing EU law, the Member States may, under EU law, be required to presume that fundamental rights have been observed by the other Member States, so that not only may they not demand a higher level of national protection of fundamental rights from another Member State than that provided by EU law, but, save in exceptional cases, they may not check whether that other Member State has actually, in a specific case, observed the fundamental rights guaranteed by the EU 

193. The approach adopted in the agreement envisaged, which is to treat the EU as a State and to give it a role identical in every respect to that of any other Contracting Party, specifically disregards the intrinsic nature of the EU and, in particular, fails to take into consideration the fact that the Member States have, by reason of their membership of the EU, accepted that relations between them as regards the matters covered by the transfer of powers from the Member States to the EU are governed by EU law to the exclusion, if EU law so requires, of any other law.

194. In so far as the ECHR would, in requiring the EU and the Member States to be considered Contracting Parties not only in their relations with Contracting Parties which are not Member States of the EU but also in their relations with each other, including where such relations are governed by EU law, require a Member State to check that another Member State has observed fundamental rights, even though EU law imposes an obligation of mutual trust between those Member States, accession is liable to upset the underlying balance of the EU and undermine the autonomy of EU law. 

195. However, the agreement envisaged contains no provision to prevent such a development.

Mutual trust: no(t too many) questions asked

It should be borne in mind that mutual trust in EU law has no factual basis. It is a normative concept ("Member States may, under EU law, be required to presume that fundamental rights have been observed by the other Member States", Opinion 3/12, par. 192). Save in exceptional cases, national judges may not check whether that other Member State has actually, in a specific case, observed the fundamental rights guaranteed by the EU. 

However, many national judges do not favor the no-questions-asked doctrine that the principle of mutual trust seems to be. (See the Dutch report Towards a common evaluation framework to assess mutual trust in the field of EU judicial cooperation in criminal matters, 2013.) A general presumption about the upholding of core values in other (Member) States is in fact contrary to the professional attitude of judges within (and also outside) the EU Member States. They find it hard to reconcile the doctrine with the duties conferred to them in their national constitutions and in Articles 6 of the ECHR and 47 of the EU Charter ("Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law.") The 'principle' of mutual trust also seems at odds with the Basic Principles on the Independence of the Judiciary as adopted by the United Nations ("The judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason.") 

We have to take into account that national judges are not necessarily convinced that by the 'mere' transfer of certain powers from the Member States to the EU also their professional attitude and constitutional responsibility should change fundamentally. Their constitutional conscience is not always understood in Brussels and is often confused with judicial disobedience. In my view judicial diligence of the Member States judges - that is so vital for the rule of law - should be much more valued in the EU legal system, also when it does not contribute immediately to efficient and speedy EU proceedings. From a rule of law point of view there are limits to what may be asked from national judges. 

Considering that the EU policymakers and legislators are, by their definition, interested parties in the effective application of EU law, their interference with the rules of the 'game'  played in the national courtrooms is rather questionable. It may be so that the scope of the mutual trust principle is reserved to matters of mutual assistance in judicial (criminal) matters, but nonetheless an uncritical application of the principle makes national judges vulnerable for allegations about their professional integrity in their courts. Judges rightfully resent to be considered as 'agents  from Brussels'. 

The need for reality checks

However it is not the mutual trust doctrine in abstracto that worries judges most; they find it especially problematic to rely on the doctrine in individual cases when the parties involved bring forward more of less convincing evidence that suggests malpractices in another Member State. The possibilities to check the reliability of such allegations may not be totally absent under the doctrine (it doesn't prescribe 'blind' trust) but the margin is defined very restrictively by the CJEU (Opinion 2/13 refers to 'exceptional cases'). Judges might be able to bridge that gap in judicial protection if they could be sure that indeed only in 'exceptional cases' things go wrong in another Member State. However, as Jörg Polakiewicz has pointed out, EU Member States are not immune from being found in violation of even the core human rights. In 2014 alone the ECtHR found 111 violations of article 3 ECHR (prohibition of torture and inhuman and degrading treatment by EU member states, 73 violations of article 5 ECHR (right to liberty and security of the person), and 183 violations of article 6 (fair trial) ECHR.

I agree with Polakiewicz that the underlying assumption that all EU Member States comprehensively ensure respect for human rights needs a "reality check". The need for such a check is especially felt in cases that involve detention situations (criminal and asylum law). But the EU's ambitions with criminal law stretch much further than the European Arrest Warrant. The working of e.g. the European Evidence Warrant will be highly dependent on the willingness of a referring judge to accept (new) evidence (house searches, witness testimonies, telephone tapping). Rightly of wrongly there is still distrust among the EU Member States in the good functioning of each others legal systems, especially on the axis Western-Eastern Europe and Northern-Southern Europe. Again, this may be unjustified but as we all know trust is hard to gain (and very easy to lose) in international relations.

Blessing in disguise?

Despite the disappointment about Opinion 2/13 I like to believe that his setback is - like the  Echternach procession- a necessary step back before we can put two steps forward. Opinion 2/13 may even prove to be a blessing in disguise. If renegotiations for a new draft agreement would indeed result in an adapted concept of mutual trust that provides more possibilities for national judges to make reality checks about contested legal assumptions, that would be considerable progress. First and foremost for the protection of human rights (let us not forget that the necessity of accession of the EU to the ECHR was prompted by the EU's aspirations to fulfill its commitments under the rule of law). But also because the effective application of EU law to a very high degree depends of the willingness of the EU judges in the Member States to co-operate. A more generous approach to the doctrine may need a bit more 'mutual trust'  from the CJEU in its national and Strasbourg colleagues. But after all accession to the ECHR is not a goal in itself. In the end all that counts is whether EU law works in practice.

Marc de Werd is judge in the Amsterdam Court of Appeal and professor of European Justice (Maastricht University)