Resumen de Is Opinion 2/13 Obsolescent?
Opinion 2/13 of the Court of Justice on the accession of the EU to the ECHR was greeted with surprise and dismay. It seemed to raise objections that were so far-reaching that the goal of accession set out in art.6(2) TEU was unlikely to be achievable. Of the many concerns expressed in the Opinion two were particularly fundamental: in the view of the Court, the Draft Accession Agreement did not comply with EU law on the principle of mutual trust or on the judicial control of the Common Foreign and Security Policy. Yet the case law of the Court, and of the European Court of Human Rights, in the last year or so has significantly lowered the legal hurdles for accession. It may well be that the political obstacles remain difficult to clear, but the legal barriers no longer loom as high as was thought in December 2014.
The mutual trust objection expressed by the Court reflected the concern that the ECHR accession would undermine the system set up by the EU in the field of the Area of Freedom, Security and Justice (AFSJ). The AFSJ is not based on complete harmonisation of national rules but rather relies on the Member States trusting each other. In the words of the Court, "[t]he 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 ... In so far as the ECHR would � 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".
In recent case law, most importantly in the Aranyosi ruling of the Grand Chamber, the Court has stepped back from a maximalist interpretation of mutual trust and has instead embraced a more limited reading of the principle. The case concerned the question of whether criminal suspects or convicts could be surrendered from Germany to Hungary and Romania on the basis of European Arrest Warrants if they might face degrading treatment given poor prison conditions such as overcrowding. Could the German court executing the EAW check the fundamental rights situation in those countries, or did it have to operate on the basis of trust? The Court decided that while mutual recognition was the cornerstone of judicial co-operation in criminal matters, it could be limited in exceptional circumstances. In particular, if the German court had evidence of inhuman or degrading treatment in the issuing Member State, it had to assess the risk and could not execute the warrant if it would result in inhuman or degrading treatment of the relevant individuals. The Court then outlined how the German court should assess the risk, in a dialogue with the authorities of the issuing States.
At the same time, the ECtHR has recognised the significance of mutual trust for the EU system. In its ruling in Avotins the Grand Chamber stated that it was, "mindful of the importance of the mutual recognition mechanisms for the construction of the area of freedom, security and justice referred to in Article 67 of the TFEU, and of the mutual trust which they require � Where the courts of a � Member State of the European Union are called upon to apply a mutual recognition mechanism established by EU law, they must give full effect to that mechanism where the protection of Convention rights cannot be considered manifestly deficient. However, if a serious and substantiated complaint is raised before them to the effect that the protection of a Convention right has been manifestly deficient and that this situation cannot be remedied by European Union law, they cannot refrain from examining that complaint on the sole ground that they are applying EU law".
It seems to me that the two European courts are now singing from the same hymn sheet on the issue of mutual trust. The accession would no longer be liable to upset the underlying balance or the autonomy of EU law in this respect.
The second fundamental objection expressed in Opinion 2/13 concerned the judicial control of the CFSP. The Court of Justice noted that certain acts adopted in the context of the CFSP fall outside the ambit of judicial review by virtue of art.24 TEU. Yet the Draft Accession Agreement would have empowered the ECtHR to rule on their compatibility with the Convention. This, said the Court, would violate the specific characteristics of EU law on the judicial control of foreign and security policy. Again, the importance of the objection has been reduced by the more recent case law. While there are limits to the jurisdiction of the Court, they are not as strict as some might have thought.
On the issue of substance, subsequent rulings such as Eulex Kosovo and the Grand Chamber judgment in H v Council have demonstrated that the limits to the Court's jurisdiction do not apply if the substantive content of the challenged act is outside the sphere of implementation of the CFSP. The Court held that it was competent to review matters such as compliance with EU public procurement rules and acts of staff management even in the context of missions to Kosovo and Bosnia/Herzegovina.
On the issue of procedure, the very recent Grand Chamber ruling in Rosneft demonstrates the Court's overriding concern to uphold the rule of law regardless of the CFSP jurisdictional limitations. Although art.275 TFEU only mentions the judicial review of targeted sanctions against natural and legal persons under art.263 TFEU actions for annulment, the Court now also accepts challenges that reach Luxembourg as preliminary references under art.267 TFEU. This is far from obvious from the language of the Treaty, and indeed the Court relies on Les Verts, the founding values of the Union and the Charter of Fundamental rights rather than a textual analysis of art.275 TFEU.
Altogether, the recent case law on mutual trust and on judicial protection under the CFSP have lowered the hurdles that a new ECHR Accession Agreement would have to clear. Mutual trust is not as absolute as was once thought and the Court has substantial powers of judicial control even in the context of the CFSP. Unfortunately the political obstacles have not vanished, and it is also likely that the EU has more than enough on its plate in terms of institutional and fundamental rights challenges. Although the Commission continues to maintain that the ECHR accession remains a priority, it may well be that the more acute issues such as Brexit and the rule of law problems in Poland and Hungary will continue to dominate the Union's attention.
