PhD candidate in European Law, Scuola Superiore Sant’Anna, DIRPOLIS Institute, Pisa.
The Brighton Declaration (2012) saw both the EU accession to the European Convention on Human Rights (ECHR) and Protocol No. 16 as the means to “enhance the coherent application of human rights in Europe”, which would clarify the scope of principles of subsidiarity and the margin of appreciation among Contracting Parties. Protocol No. 16 of the ECHR was designed as a “protocol of dialogue”, as it allowed the highest courts and tribunals of a High Contracting Party (including the EU Member States) to request the European Court of Human Rights’ (ECtHR) advisory opinions, therefore developing the Brighton Declaration’s adherence to the principles of subsidiarity and the margin of appreciation among Council of Europe Member States. The Protocol has an optional status and the advisory opinions are of a non-binding nature; thus, it has not been seen as a possible issue during the 47+1 group negotiations on the EU accession to the ECHR.
At the same time, in Opinion 2/13 on EU accession to the ECHR, the Court of Justice of the EU (CJEU) interpreted Protocol No. 16 as a possible threat to the autonomy of EU law. The destiny of Protocol No.16 in the EU Member States (which are all the ECHR signatories) is now uncertain. The aim of this paper is to explore the destiny of Protocol No.16 in the light of CJEU Opinion 2/13, given the incredible uncertainty surrounding this issue. Firstly, this paper elaborates on the CJEU reasoning in interpreting the position of Protocol No. 16 within the EU legal order. Secondly, an attempt is made to assess the possible after-effects of Opinion 2/13 on the future of Protocol No. 16 in the EU Member States.
Protocol No. 16 of the ECHR in CJEU Opinion 2/13: A “threat” to the primacy of EU law
The Court of Justice took an extremely protective approach in Opinion 2/13 while interpreting the role of the preliminary rulings procedure in the light of Protocol No. 16 of the ECHR. Evidently, the CJEU connected the possible effects of Protocol No. 16 with two fundamental theoretical issues: the importance of the preliminary reference procedure as an integral part of the EU judicial system and its role in the protection of the primacy of EU law within the EU legal order.
The legal reasoning of the CJEU in this part of the judgment expresses the concern that Protocol No. 16 might undermine the effectiveness of the preliminary ruling procedure guaranteed by Art. 267 of the Treaty on the Functioning of the European Union (TFEU). In accordance with Art. 1 of Protocol No. 16, “the highest courts and tribunals of a High Contracting Party … may request the Court to give advisory opinions on questions of principle relating to the interpretation or application of the rights and freedoms defined in the Convention or the protocols thereto”. At the same time, Art. 267 (3) of the TFEU obliges the same courts (i.e. “a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law”) to bring the matter before the CJEU. As a result, the supreme courts or tribunals of the EU Member States will be allowed to submit questions concerning, for example, the interpretation of rights guaranteed by the Charter corresponding to those secured by the ECHR, thus to the European Court of Human Rights (ECtHR) instead of the CJEU. The Draft Accession Agreement did not include any provisions with respect to the relationship between the mechanism established by Protocol No. 16 and the preliminary ruling procedure provided for in Article 267 of the TFEU, which (at least in the eyes of the CJEU judges) made Protocol No. 16 a threat to the external autonomy of the EU legal order. This Court’s approach quite evidently demonstrated an awareness of the interpretative competition between the European Courts and the risk of conflicts after accession.
It will be argued that the position of the CJEU expressed in Opinion 2/13 illustrates the development of the previous lines of reasoning in the Melki and Abdeli and A v. B cases as both of these cases deal with the goals and the role of the preliminary reference procedure for EU law development. In the Melki and Abdeli and the A v. B cases, In the Melki and Abdeli and the A v. B cases, the emphasis was made on the right of the EU Member States’ courts to submit to the CJEU any questions concerning the interpretation of the European law at any stage of national proceedings they consider necessary . Therefore, all interlocutory procedure(s) prescribed the within national legal system, effectively preventing national courts from referring questions to the CJEU, shall be prohibited under Art. 267 of the TFEU. In Opinion 2/13, the CJEU goes even further, describing the preliminary reference procedure as the “the keystone of the judicial system established by the Treaties”. It will be affected if no special provisions are made to balance the relationship between Protocol No.16 and the preliminary ruling procedure of Art. 267 of the TFEU, as it will violate the autonomy and effectiveness of the latter procedure. The Court continued the Melki and Abdeli and the A v. B line of reasoning by emphasizing the importance of the preliminary references for the unity and efficiency of European Law, making even the legal protection of the individual secondary to these purposes. Therefore, Opinion 2/13 may be considered a manifestation of the primacy of European law even in the area of the human rights protection, and thus a step back from the virtues of Article 52(3) of the Charter of Fundamental Rights, by which EU law has previously limited the scope of its autonomy, namely as regards those rights which the Charter has borrowed directly from the Convention.
In light of what has been argued, Opinion 2/13 does not seem to favour the further signature of Protocol No. 16 of the ECHR by the 19 remaining EU Member States and its ratification by 26 EU Member States, which may even raise doubts concerning the Protocol’s entry into force (10 are ratifications necessary). The interest among the candidate states (the former Yugoslav Republic of Macedonia, Montenegro, Serbia, and Turkey) and the potential candidate states (Bosnia and Herzegovina) in joining Protocol No.16 is likely to remain modest as well, while the other members of the Council of Europe may continue to sign and ratify the Protocol No. 16 to use the advantage of preliminary consultation with the ECtHR.
Nevertheless, even the controversial situation when Opinion 2/13 de facto precludes the EU Member States from joining Protocol No. 16 should not necessarily be seen as a negative one. By doing so, the CJEU excluded the opportunity of the supreme courts of the EU Member States to ask for the advisory opinion of the ECtHR after the previous national court has already been given the CJEU’s preliminary ruling in the same procedure. Moreover, it postpones possible issues that could arise because of different national treatments of the ECHR provisions in conjunction with the application of Protocol No. 16. It also allows for avoiding conflicts in interpretation of the analogous ECHR and Charter provisions by the Strasburg and Luxembourg Courts – at least until the necessary legal environment for the use of Protocol No. 16 within the EU legal order is created.
It is quite likely that the EU accession to the ECHR itself will be delayed for an indefinite period of time. This is due to the difficulty of reaching a consensus on a new version of the Draft Accession Agreement with all members of the Council of Europe (such as Russia, Ukraine, and Turkey) in the near future. At the same time, one should remember that the European Union accession to the European Convention on Human Rights and Fundamental Freedoms remains a legal duty in accordance with Art. 6 of the TEU, Protocol No. 8 of the TEU and the TFEU, and Declaration No. 2 on Article 6(2) of the TEU. It is likely that the EU will choose another tactic in the next round of the negotiations by focusing on internal implementation. However, only time will tell which direction the Luxemburg and Strasburg negotiators will take to further protect the autonomy of the EU legal order.
Paras. 9(i), 36, The Brighton Declaration on the future of the European Court of Human Rights <http://www.echr.coe.int/Documents/2012_Brighton_FinalDeclaration_ENG.pdf > accessed 8th September 2015, paras. 9(i), 36.
 For a comment on the hearing of May 2014 at the ECJ concerning this Opinion, see Stian Oby Johansen, “Some thoughts on the CJEU hearing on the Draft EU – ECHR Accession Agreement. Part 1 of 2” (Øby-kanalen, 6 May 2014) <https://obykanalen.wordpress.com/2014/05/06/some-thoughts-on-the-ecj-hearing-on-the-draft-eu-echr-accession-agreement-part-1-of-2> accessed 8th September 2015.
 Giuseppe Martinico, “Four Points on the Court of Justice of the EU. Perspectives on Federalism” (2014) 6 Perspectives on Federalism (Issue 3) pp. 102–125, 114.
 Joint cases of C-188/10 and C-189/10, Aziz Melki and Sélim Abdeli  ECR I-5667.
 Case A v B and Others  Judgment of the Court (Fifth Chamber), 11th September 2014.
 Opinion 2/13, Re Accession of European Union to the Convention for the Protection of Human Rights and Fundamental Freedoms  Opinion of the Court (Full Court), 18th December 2014, paras. 197–199.