Se-shauna Wheatle – Opinion 2/13 and its UK Human Rights Effects

Upon digesting the reasoning of the Court of Justice of the European Union (CJEU or ECJ) in its surprising Opinion on the EU’s Accession to the European Convention on Human Rights, the overall sense from a UK perspective is that the CJEU is methodically surrendering the moral high ground. By this I mean that Eurosceptics can find substantial moral comfort in the CJEU’s decision. Both in its rebuff and denial of jurisdiction to the ECHR and in its rather muscular assertion of EU primacy, the Court of Justice provides powerful ammunition to critics of the jurisdictional scope and interpretive breadth of the European Court of Human Rights while simultaneously providing evidentiary support for those sceptical of the growing power of the EU and its Court of Justice.

So the Court’s Opinion gives comfort to Eurosceptics in two senses.

First, by rejecting the accession agreement on grounds of erosion of EU law autonomy and erosion of the CJEU’s dominance, the Opinion serves to underscore arguments for loosening UK ties with the ECHR through repeal of the Human Rights Act and enactment of a distinctly British Bill of Rights. Indeed Justice Minister Chris Grayling has expressed his partial agreement with the ECJ’s rebuff to the ECHR in oral evidence to the European Scrutiny Committee. He stated:

“Ironically, from a very different route, the ECJ have reached the same conclusion that I have about the ECHR. … Because it [the ECHR] has an unlimited jurisprudence, and because it can interpret different aspects of our daily life as being affected by human rights laws, it has a legal blank cheque to decide different things in different areas in the way that it chooses.

More specifically, Opinion 2/13 concludes that Article 53 ECHR which empowers states to prescribe higher human rights standards than those of the ECHR must be reined in. The Opinion states that Article 53 must be coordinated with the ECJ’s position that Member States must not have higher human rights standards than the EU Charter in areas where the EU has fully harmonised the law. In so ruling, the ECJ has affirmed and extended the Melloni prohibition on higher human rights standards affecting the primacy, unity and effectiveness of EU law to the entire terrain of ECHR norms. It underscores the pressing nature of the issue of how EU law primacy will be resolved when in conflict with constitutional norms in the UK. This issue was broached by Lord Neuberger in the HS2 judgment where His Lordship pointedly stated that it is not a foregone conclusion that EU law will trump fundamental constitutional norms in the UK. There is clearly a wide gulf between Lord Neuberger’s reasoning in HS2 and Opinion 2/13’s insistence on the surrender of all other norms (even fundamental rights norms) to EU law primacy. The time may yet come for this tension between the position of the regional court and that of UK judges to be resolved.

Second, ironically, while undermining ECHR norms and implementation, the ECJ’s protestations of EU primacy, of the autonomy of EU law, and the need for fidelity to the EU to the exclusion of all others, the ECJ’s judgment may reinforce demands for renegotiation or revisiting of UK’s membership of the EU. This is because in 4 respects, Opinion 2/13 is manifestly a demonstrative power grab:

  1. As a consequence of accession, the ECHR would become ‘an integral part of EU law’ (para 204) and by virtue of Art 344 of the Treaty on the Functioning of the EU (TFEU), the CJEU has a monopoly on inter-state disputes within the scope of EU law. The draft agreement would violate the exclusive jurisdiction rule because it leaves open the possibility that the EU or Member States may apply to the ECtHR regarding alleged violations by a Member State or the EU, in connection with EU law. For the ECJ, ‘the very existence of such a possibility undermines the requirement set out in Article 344 TFEU.’ This flaw can only be cured, according to the ECJ, by ‘the express exclusion of the ECtHR’s jurisdiction under Article 33 of the ECHR over disputes between Member States or between Member States and the EU in relation to the application of the ECHR within the scope ratione materiae of EU law’.
  1. The ECJ views the new ECHR Protocol paving the way for advisory opinions as a further threat to EU law autonomy. That agreement must eliminate the possibility that when national courts apply to ECtHR for advisory opinion under Protocol 16 to ECHR, they could thereby seek a ruling from the ECtHR (instead of the ECJ) on the compatibility of EU law with the ECHR. This potential, in the view of the ECJ, poses a threat to the autonomy of EU law.
  1. The Opinion’s conclusion that the accession agreement must ensure that there are limits on Member States applying higher human rights standards that adversely affect the primacy and unity of EU law.
  1. Most astoundingly, there is the ‘if we can’t have it, no one can’ attitude of the ECJ on Common Foreign and Security Policy (CFSP) matters. In the view of the ECJ the draft agreement would lead to the untenable position whereby ‘the ECtHR would be empowered to rule on the compatibility with the ECHR of certain acts, actions or omissions performed in the context of the CFSP, and notably of those whose legality the Court of Justice cannot, for want of jurisdiction, review in the light of fundamental rights. (para 254)’

Bearing in mind the above four reasons given by the ECJ for the incompatibility of the draft agreement, the ECJ’s stance on its own jurisdiction and on the primacy of EU law is likely to cause offence to Eurosceptics. Early indications appear from Chris Grayling’s assessment that the Opinion shows the ECJ’s discomfit with ‘the idea that it will become a junior court’ and the ECJ rejected subordination to the ECHR ‘on the basis that they want all the power themselves’. From the perspective of Eurosceptics the Opinion is impeachable on grounds that it purports to prescribe European limits on the UK’s own efforts at defining and applying its own home-grown human rights. If the Human Rights Act is repealed, this could become an issue in debates on a British Bill of Rights.

Certainly, even from the perspective of human rights advocates and activists, it is dispiriting that the EU, on the CJEU’s interpretation in Opinion 2/13 (expanding on its ruling in Melloni) prescribes limits on the UK’s own efforts at rights protection. The (legal and political) consequences of this ruling are a clear subordination of human rights norms and objectives to EU law and subordination of the ECHR to the EU. This communicates a hierarchy of norms and priorities. As a consequence of the ruling relating to Art 53 ECHR, if a British Bill of Rights is enacted, there is a rights ceiling in the form of the Charter as interpreted by the CJEU, at least in areas of law harmonised by the EU. This is a ceiling which- if accession is agreed on the amended terms made necessary by the Opinion- would be applicable in both the ECHR system and the EU system. (The effect of this ceiling is likely to hit socio-economic rights hardest – as that is the area where the EU has greater implications.)

From the UK perspective then, the winners emerging from Opinion 2/13 are Eurosceptics and the losers are those who advocate more effective and comprehensive rights protections.

Se-shauna Wheatle

Research Associate in Public Law, Durham Law School

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