European Parliament – Committee on Constitutional Affairs, Public Hearing 20 April 2016, Brussels

Statement by
Mr Jörg POLAKIEWICZ

Director of Legal Advice and Public International Law
Council of Europe

Ladies and gentlemen,

From the outset, I should stress that while being the Council of Europe’s Legal Adviser, I cannot give you my organisation’s official position. Our member states have so far not adopted conclusions on opinion 2/13 or its consequences.

Using tennis language, I would say that the ball is within the EU’s court. Since the delivery of opinion 2/13, we are waiting for the European Commission’s proposals how to overcome the various objections.

That said, I am particularly grateful to your committee for having invited me to participate in this hearing.

It is certainly not for the Council of Europe to tell the EU how it should settle its internal problems. However, any proposals by the Commission will be subject of negotiations in Strasbourg. As my learned colleague Prof Jacqué remarked, it “needs two to tango.”

Since the issues are both numerous and legally complex, I have prepared a written contribution. I now focus on a few points only.

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My general advice can be summarised in 5 points:

1. Keep formal amendments to the accession agreement to a minimum. If all  objections are met by formal amendments, there is a real risk that, as a result, the ECtHR’s jurisdiction over EU legal acts will be more restricted than it is today. Such a solution would undermine the whole purpose of accession and will hardly be acceptable to non-EU member states.
2. In particular, do not use so-called ‘disconnection clauses’. They are out of place in treaties guaranteeing human rights standards.
3. Avoid including provisions on internal EU matters into an international treaty which will ultimately be interpreted by the ECtHR.
4. Instead use, wherever possible, the EU’s internal rules to ensure that EU member states comply with EU law when implementing the accession agreement.
5. Interpretative declarations as well as reservations may also be useful tools. The accession agreement allows to make reservations in respect to both EU ‘primary’ and ‘secondary’ law.

Coming now to particular issues, I think the objections regarding ECHR Protocol 16 and the prohibition for EU member states to bring any disputes connected with EU law before the ECtHR are best dealt with through the EU’s internal rules or, possibly, unilateral declarations.

Advisory opinions under Protocol 16 are not binding – how can they prevail over compulsory EU law?

It is significant that already 3 EU member states have ratified Protocol 16 without making any declaration. 

To provide in the accession agreement for the explicit exclusion of intra-EU disputes entails the risk that the ECtHR, when deciding on the admissibility of applications, would have to interpret EU law, which itself would be contrary to the ECJ’s opinion.

The objection to coordinate article 53 ECHR with article 53 of the Charter came as a surprise even for many EU lawyers. How can ratification of the accession agreement resurrect powers that member states have already lost under the EU treaties?

Article 53 ECHR allows contracting parties to apply higher standards of protection than those guaranteed under the Convention. This provision is not about powers or competences. It is simply a rule of construction that purports to limit the pre-emptive effect of the remaining ECHR provisions.

As regards mutual trust, EU law and ECHR are based on the same principles and values.

Respect for fundamental rights is a key component of the area of freedom, security and justice and EU member states are not immune from being occasionally found in violation of even the most serious human rights violations.

National courts have no problem in applying ECHR standards in EU mutual recognition cases. The German Bundesverfassungsgericht reached in its EAW decision of 15 December 2015 the same conclusion as the ECtHR, namely that national authorities have a duty to ensure in every individual case that the rights of the requested person are respected. 

We very much welcome the ECJ judgment of 5 April, where it recognised that the execution of an EAW must be deferred if there is a real risk of inhuman or degrading treatment. 

From Strasbourg perspective, it would indeed be ideal if this objection could be overcome by further ECJ case law development. If necessary, reservations may be made in respect of specific provisions of EU mutual recognition legislation.

The Commission has made a series of concrete proposals on how to overcome objections relating to the co-respondent mechanism. It would not be appropriate for me to provide comments without being asked to do so by either the Commission or the member states.

I would only like to recall that the relevant provisions of the accession agreement were drafted in order to accommodate to fullest extent possible the autonomy of the EU’s legal order as well as to ensure that the ECtHR does not pronounce itself on issues of EU law.

Going beyond what has been achieved must not sacrifice the role and status of the ECtHR under the Convention.

The objection regarding Common Foreign and Security Policy goes to the very heart of the compromise reached in the accession agreement. Creating an exception cannot be reconciled with the idea of comprehensive and effective ECHR supervision or the principle that the EU should accede on an equal footing with the other contracting parties.

A possible solution short of EU treaty amendment might be a declaration by an Intergovernmental Conference to the effect that the EU treaties should be construed in a way that the ECJ has jurisdiction in respect of all EU acts that can possibly come under ECHR review.

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To conclude, I would like to quote Commission president Jean-Claude Juncker who declared yesterday before the Parliamentary Assembly in Strasbourg that EU accession is an obligation and priority for the Commission.

The ECJ has certainly not facilitated our task. The challenge is to overcome objections which are not only of an exceptional magnitude, but also, at least partially, of questionable legal relevance. A former ECtHR judge has described the opinion as “a political decision disguised in legal arguments.”

It is therefore not surprising that it has been proposed to overcome the current deadlock through amendments to the EU treaties, allowing for EU accession notwithstanding opinion 2/13.  This is certainly a legally possible solution but it would neither be respectful of the ECJ’s role under the EU treaties nor realistic in political terms.

What is possible is to address the objections one by one, identifying solutions which respect both the requirements of EU constitutional law and the integrity of the ECHR system.

Since it seems inevitable to ultimately return to the ECJ for a new opinion, the finalisation of a revised package of legal instruments should be accompanied by a strong political message to be adopted at the highest level that the solutions found have the political backing of all member states, the European Parliament and the Commission.

Immediately after the publication of the ECJ opinion, Secretary General Jagland declared that he will do what he can to help bring the process forward.

My presence in your midst today is an encouraging sign of our ever closer collaboration.

Let us work together to achieve our common goal, a coherent system for fundamental rights protection for the whole of Europe.

We owe it to the citizens of Europe.