Shared responsibility and the draft EU-ECHR Accession Agreement: some observations regarding attribution and the intervening role of the Court of Justice

 Posted by: Ryngaert Cedric

In this blogpost I reflect, from a shared responsibility perspective, on two issues arising under the draft EU-ECHR Accession Agreement: (1) the question of to whom EU member states’ acts implementing EU law are attributed, and why; (2) the intervening role reserved for the Court of Justice of the EU (CJEU) in proceedings brought before the European Court of Human Rights (ECtHR). The relevant provisions in the draft Accession Agreement are Art. 1(3), respectively Art. 3(6).

 

1. Issues of attribution

The draft Accession Agreement makes it clear that the attribution of responsibility may be a function of the relevant primary norms of international law, and their scope (the ECHR norms in the case) rather than of secondary rules that are applicable across-the-board. Questions of shared/exclusive responsibility are then conceived of differently with respect to the ECHR than, say, the World Trade Organization (WTO). In the former case, acts of EU member states implementing EU law are attributed to the member state rather than to the EU, whereas in the latter, such acts are attributed to the EU, the member states being mere agents or organs.

The somewhat idiosyncratic way of addressing responsibility issues at the ECtHR can be explained by the fact that the EU has not been a Contracting Party to the ECHR. As a result, the issue has always been whether a given individual fell within the jurisdiction of a (EU member) state that was an ECHR Contracting Party, and thus whether the impugned acts could be attributed to that state. In a second stage, the Court then went on to inquire whether the member state could (partially) escape its responsibility by hiding behind EU law. This is the well-known approach taken in Bosphorus v. Ireland (2005).

This approach has also been incorporated in the Accession Agreement. Article 1(4) indeed attributes all acts that are allegedly contrary to the ECHR obligations and are not the acts, measure or omissions within the meaning of Article 1(3) for which the ECHR imposes obligations on the EU, to the member state. In essence, this means that all member states’ acts implementing EU law will normally be attributable to the member state itself. But as we know, Bosphorus allowed member states to get off the hook if they could convince the Court that the impugned EU acts were broadly speaking ECHR-compliant (equivalent protection principle). If they could not do so (in practice they always could), the member states would be held responsible. In no case could the EU be held responsible. The Accession Agreement now changes this approach somewhat, via the co-respondent mechanism (‘the EU can become co-respondent in a procedure directed against an EU member state, if the case calls into question the compatibility of a provision of Union law – both under TEU and TFEU secondary law – with the rights protected by the ECHR’). This mechanism enables the Court to eventually hold the EU responsible – possibly alongside the member state – although the act itself is not attributed to it (‘attribution of responsibility’). This is only fair, as a member state should not be solely held responsible when it does nothing more than implementing EU obligations (or in WTO terms: when it merely acts as the agent of the EU; in the WTO this has led to exclusive attribution to, and responsibility for the EU). Ultimately, allocating responsibility to an actor who cannot prevent or redress a wrongful act does not serve a purpose.

A question that may subsequently arise is whether the EU and the member state could incur joint responsibility under the new system. In itself, the Accession Agreement remains silent on how to precisely apportion responsibility between the EU and the member state. In my view, it is not inconceivable that the ECtHR might conclude to joint responsibility. This seems to follow from the application of the Bosphorus principle hitherto: a member state may ultimately be held responsible for failing to take measures to ensure that an international organization, to which the state has transferred competencies, adequately complies with human rights.

 

2. The intervening role of the Court of Justice of the European Union

A curious provision of the draft Accession Agreement, Art. 3(6), gives the CJEU a chance to express its opinion on the compatibility between Union (secondary) law and the ECHR, if it has not yet had the opportunity to do so. This allows the EU to exhaust its internal remedies so as to remedy a situation before the ECtHR steps in.

Art. 3(6) of the draft Accession Agreement appears to be particularly relevant in respect of failures of EU member state courts to request a CJEU preliminary ruling concerning an EU law question with human rights overtones (I elaborate on this in a forthcoming article in the European Law Review). The ECtHR has so far mainly dealt with EU member state courts’ decisions to refrain from requesting a preliminary ruling as cases arising under Article 6 ECHR: if such decisions are insufficiently reasoned and arbitrary, they may compromise the fair trial rights of the aggrieved individual. In the recent Michaud v. France (2012) case, however, which has set the stage for the aforementioned Art. 3(6), the ECtHR – rather than examining the reasons for the refusal – inquired whether the substantive legal issue at play in the proceedings was compatible with individual rights as protected by the ECHR. The Court notably reviewed whether the French implementation acts with respect to EU Directives on money laundering were compatible with the right to privacy (including professional secrecy) as laid down in Article 8 ECHR, without the CJEU having ruled on this matter.

This substantive approach to failures to request a preliminary ruling should at first sight follow the reasoning followed by the ECtHR: the French act of implementation suffices to bring the aggrieved individual within the jurisdiction of France (the first step in Bosphorus), while further ECtHR inquiry into the matter should be blocked on the ground that the EU provides equivalent rights protection (the second step in Bosphorus). However, what distinguished Michaud from Bosphorus, according to the Court, was that the CJEU had not yet examined the legal issue, neither in a preliminary ruling procedure concerning another case, nor in another procedure brought by a member state or an EU institution (para. 114). The ECtHR admitted that in principle, indeed, the CJEU provides equivalent rights protection, but that such protection does not mean much when the CJEU has not had the opportunity to actually examine the legal issue. When this is the case, the international mechanism which controls respect for human rights, ‘[n’]ait pu déployer l’intégralité de ses potentialités’, as a result of which the Bosphorus-based presumption of equivalent rights protection does not apply (para. 115).

This is certainly far-reaching, as the ECtHR is essentially taking the place of the CJEU in the preliminary ruling or other EU judicial procedure, thereby plugging the gaps in EU judicial protection and pre-empting the CJEU’s analysis of the subject matter. Still, it is of note that the ECtHR refrained from directly reviewing EU law, instead concentrating on the French law implementing EU law. This approach, aimed at respecting the autonomy of the EU legal order, was possible because the EU law relevant to the case consisted of EU Directives which are – unlike the EU Regulations at play in Bosphorus – only binding as to their result, and which thus leave the member state with some room for maneuvering.

As in Michaud the ECtHR focused on domestic law rather than EU law, thereby concentrating on the member state’s implementation freedom, its intrusive effect on EU law should not be overstated. Nevertheless, this circumvention strategy has its obvious limits, as it may not always be self-evident to determine what is implementation freedom and what is not. Michaud, at any rate, demonstrates that the ECtHR is not actively isolating member state discretion for review purposes (in the case it reviewed all relevant French law, regardless of its origin, in light of Article 8 ECHR). And when there is no implementation freedom, such as in case of an EU Regulation, the ECtHR would directly review the ECHR compatibility of an EU legal instrument.

The draft Accession Agreement makes such a review possible – a very logical consequence of the EU joining the ECHR – but at least Art. 3(6) allows the CJEU to act as a first reviewer of the human rights compatibility of (the interpretation of) an EU legal instrument if it has not intervened yet. This provision is an acknowledgment that the EU system of judicial protection may be not watertight, and that individuals may be forced to apply to the ECtHR because of EU institutional failures, or lack of readily available internal EU remedies. But at the same time, its very existence may put pressure on EU institutions and their member states to provide more systematically for proper internal EU remedies, thereby preventing awkward applications from reaching the ECtHR for lack of an EU remedial avenue.

International Law Commission and the topic ‘Protection of the Atmosphere’: Anything new on the table?

 Posted by: Plakokefalos Ilias

The International Law Commission (ILC), in its sixty-fifth session (2013) decided to include in its programme a topic entitled ‘Protection of the Atmosphere’ (see here para. 168). The ILC appointed as a Special Rapporteur Mr. Shinya Murase.

The inclusion of the topic is a very interesting development. It is the second topic pertaining to environmental law (the other being ‘Protection of the Environment in Relation to Armed Conflicts’) currently under consideration by the ILC. It is also a very difficult topic, given the number of conventions, both successful and unsuccessful ones, that have been so far concluded, the body of academic output on issues of atmospheric pollution and the strong political pull on the issue.

What makes the topic in the programme of the ILC even more interesting is the process of its adoption. In 2011 the current Special Rapporteur submitted his recommendations for the inclusion on of the topic in the programme of work (see here). In this document the Special Rapporteur presented a compelling case for the inclusion of the topic in the programme, and its subsequent codification and progressive development by the ILC.

Mr. Murase observed that there are a large number of instruments that address the problem of atmospheric pollution (e.g. the Convention on Long Range Transboundary Air Pollution and its Protocols, the UN Framework Convention on Climate Change and the Kyoto Protocol etc.). Nevertheless, these instruments are a ‘patchwork’ that comprises of different approaches that focus on geographically limited areas and regulate a limited number of substances or activities. He went on to note that the way forward would be a framework convention. The problem of atmospheric pollution, he noted, warrants by its nature a holistic approach. Mr. Murase pointed to Part XII of the Law of the Sea Convention as an example of such an approach. The work of the ILC would, according to the Special Rapporteur, fill in the gaps of existing treaty regimes, lead to the harmonisation with international treaties outside environmental law, as well as the harmonisation of national laws, rules and regulations with international standards. He also stated that the objective would be to combine the transboundary and global atmospheric problems while working on identifying the legal status of the atmosphere along the lines of the concepts of common heritage, common property, common concern or common natural resources.

Admittedly the Special Rapporteur presented a well rounded, finely argued and forward looking plan for the work that would lie ahead if the topic were accepted by the ILC.

On 9 August 2013, the ILC did in fact include the topic in its programme of work. Between the proposal of the topic by Mr. Murase and its inclusion in the programme there was an intermediate step. Mr. Murase, following informal consultations with a group of ILC members under the direction of the President, presented a new approach (see here at pp. 9-10). According to the new approach the ILC would not interfere with political negotiations and would not seek to fill gaps in the treaty regimes. It would not discuss climate change, the protection of the ozone layer or long-range transboundary pollution. Furthermore, it would not discuss the precautionary principle, the polluter-pays principle, the principle of common but differentiated responsibilities or the transfer of funds and technology from developed to developing states. The ILC would not deal with the regulation of specific substances either. According to the ILC, the outcome would be ‘Draft Guidelines’ that would not seek to impose on treaty regimes legal rules or principles that are not already contained therein.

The contrast between Mr. Murase’s proposal and the result endorsed by the ILC is indeed stark. While the Special Rapporteur had proposed a complete treatment of the topic from all possible angles, the ILC returned with an extremely limited mandate. While it is tempting to get to the political rationale behind this turn, what is important is to see if there is any merit to the adopted approach. If the ILC accepts the premise that the current treaty regimes are not adequate for the protection of the atmosphere because they are indeed a patchwork of uncoordinated approaches on the topic, then it is hard to see how the Draft Guidelines would be of any practical value. Moreover, all possibly ‘difficult’ issues lie outside the mandate of the Special Rapporteur. What remains within the mandate is a matter of speculation. Possibly a definition of the atmosphere, a definition of its legal status, a proposal on coordination and further cooperation among states as well as a reminder – in soft law terms – of the obligations states have already undertook as a matter of treaty or customary law; admittedly not much.

The ILC watered down significantly the initial proposal, offering a mandate to the Special Rapporteur that provides for very little room to produce a meaningful result. If the ILC wanted to avoid any discussion that would touch upon the substance of the problem of atmospheric pollution, it could have adopted an alternative approach. An argument could be made that the existing treaty regimes are adequate, that they are – reasonably – successful and that continued efforts for better coordination do indeed take place (e.g. the synergies process of the Rotterdam, Stockholm and Basel Conventions. Moreover, if the states have not been able to agree on how to address fundamental problems of atmospheric pollution (including climate change), it would be hard to see how the ILC would achieve better results.

This view, however, would mean that there would be no reason to discuss the topic at all. On the other hand, the original proposal of Mr. Murase would open a number of very interesting discussions within the ILC and possibly offer something new on the table.

Either approach (i.e. non inclusion or keeping the original proposal) would be far more plausible than the one adopted. Non-inclusion would not create any expectations and it would not bring forth another soft law instrument on international environmental law, something hardly necessary. Alternatively, the original proposal could lead to a renewed interest in the topic in a meaningful way.

In any case, it is interesting to see how the Special Rapporteur will manoeuvre around his strict mandate so as to produce a meaningful set of guidelines on a topic that touches upon a problem shared by all states.