15 April 2013

Shared responsibility after EU accession to the ECHR revisited

After almost three years of negotiations a final draft agreement on the accession of the EU to the European Convention on Human Rights has been published (here). I considered it therefore appropriate to revisit some of the criticisms I made on an earlier draft in this blog (here). In line with this blog’s remit, I shall again focus on the issue of shared responsibility and will in particular aim to explain the workings of the co-respondent mechanism, which is the agreement’s central innovation.

As explained in my previous post one of the key challenges for the negotiators of the accession agreement was to create, as required by Protocol 8 to the Lisbon Treaty, ‘the mechanisms necessary to ensure that proceedings by non-Member States and individual applications are correctly addressed to Member States and/or the Union as appropriate.’ The background to this is that it is chiefly the EU’s Member States which apply European Union law. Thus where a provision of EU law is (allegedly) in violation of the ECHR, a claimant will be confronted with an act by a Member State authority and will consequently seek remedies in the courts of that Member State. If these remedies are unsuccessful, the claimant can file an individual application with the European Court of Human Rights (ECtHR). The respondent in such a case would be the Member State. Yet the actual cause for the violation lies in EU law and can only be remedied at EU level (e.g. by amending the piece of legislation in violation of the ECHR). In my previous post I remarked that the solutions found in an earlier draft of the accession agreement were not entirely satisfactory for two reasons: 1) that there was no explicit exclusion of a defence raised by a Member State that it was not responsible for the violation as the violation was rooted in its obligations under EU law; 2) the voluntary character of the co-respondent mechanism. Both flaws have now been removed.

Article 1 (4) of the accession agreement provides that an act or omission of organs of a Member State shall be attributed to that Member State even where it implements EU law. This provision therefore expressly excludes the defence of not being responsible for a violation rooted in EU law. This provision already shows the way in which the accession agreement envisages the primary responsibility to be distributed between the EU and its Member States. The decisive question is which entity has acted vis-à-vis the applicant. If it was an EU institution (e.g. the European Commission fining a company in cartel proceedings) the EU is the correct respondent. If it was a Member State authority (e.g. the Home Secretary freezing the applicant’s assets) it is the Member State, no matter whether the legal basis for the Member State action was rooted in EU law or whether it was purely domestic in nature.

The co-respondent mechanism is designed to address the issue that in the case of the EU and its Member States attribution and responsibility may not coincide. Where the Member States acts because of an obligation under EU law, the act is attributed to the Member State, but in fact the EU may be truly responsible for the violation. In order to allow for the EU to be brought into the proceedings, the mechanism allows the EU to join them not only as a third party intervener, but as a co-respondent. This means that the EU will become a party to the proceedings alongside the Member State so that the judgment will be binding on the EU as well.[1] The precise conditions under which the co-respondent mechanism will be triggered are not exactly straightforward. For the situation in which a Member State is named as the main respondent, Art. 3 (2) of the draft accession agreement provides that:

Where an application is directed against one or more member States of the European Union, the European Union may become a co-respondent to the proceedings in respect of an alleged violation notified by the Court if it appears that such allegation calls into question the compatibility with the Convention rights at issue of a provision of European Union law, including decisions taken under the TEU and under the TFEU, notably where that violation could have been avoided only by disregarding an obligation under European Union law.

This means that an applicant must claim that a provision of EU primary or secondary law or a decision by the EU institutions is in violation of the ECHR. In my previous blog post I criticised that the co-respondent mechanism as foreseen in the then available draft was voluntary. Thus the mechanism did not ensure that responsibility between the EU and the Member States in such cases is attributed correctly since there was no guarantee that the EU would actually join the proceedings. The draft agreement itself has not been amended in this respect. However, in Annex II to the draft agreement the European Union makes a declaration promising to ensure that it will request to become a co-respondent in cases where the above conditions are met. Thus while the draft agreement itself does not compel the EU to become a co-respondent, the Union has voluntarily agreed to become a co-respondent whenever this is possible. This is a more than welcome development ensuring an effective protection of the human rights contained in the Convention.

Interestingly, the Member States do not appear to have undertaken a similar obligation in the reverse case where the EU is the main respondent. In such a case the Member States may become co-respondents if the violation is rooted in primary EU law (i.e. the Treaties). This is because violations of the ECHR rooted in primary law can only be removed by way of a Treaty amendment, which all Member States must ratify. In such cases the co-respondent mechanism would only really make sense if all the Member States became co-respondents since the EU’s treaties can only be amended unanimously. It remains to be seen whether the Member States will undertake the same commitment as the Union. Given that Protocol 8 to the Lisbon Treaty obliges them to ensure that applications are correctly addressed, this would certainly be appropriate.

Finally it is worth mentioning that the draft agreement does not provide rules for the distribution of responsibility between the EU and the Member State(s) in case the Court finds a violation. Article 3 (7) merely states that they should be jointly responsible, but it also allows the Court to rule that only one of them should be responsible. If the Court finds the Union and the Member State(s) to be jointly responsible and awards damages to the applicant, the EU and its Member States will have to come to an agreement as to who will ultimately have to pay. This brings us to the next stage of the EU accession negotiations. Now that an agreement has been drafted, the EU will have to adopt internal rules. Apart from the question of who will have to pay, the internal rules will need to lay down the procedure for the involvement of the European Court of Justice (ECJ) in (some) co-respondent cases, address the representation of the Union before the ECtHR and many more details. Once the internal rules have been agreed, they together with the draft agreement will be presented to the ECJ for an Opinion as to their compatibility with the EU’s treaties. If the ECJ gives a green light, the ratification process can finally commence.

[1] Art 3 (1) of the draft agreement.

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