Abstract
This chapter provides an analysis of the inter-party complaint procedure in an EU-ECHR post-accession context, tackling not only the reconciliation of EU and Convention regimes to enable the utilization of this mechanism but also means which show evidence of how EU law autonomy may be protected therein. The chapter responds to the research sub-question: ‘Whether and, if yes, how can ECHR and EU Law reconcile to allow for EU/Member States to use inter-party mechanism of ECHR?’ The chapter examines carefully the EU law limitations on the use of external tribunals for purposes of interpreting segments of EU law, under the note that ECHR has already become part of EU law. To this purpose, the chapter looks at the extent to which the EU Treaties’ limitations on external tribunals’ jurisdiction should be interpreted, and shows ways which may reconcile it with ECHR provisions on inter-party jurisdiction of the Strasbourg Court. Mox Plant and Ireland v. UK are used and systematically examined against the inter-party mechanism and mechanics provided for by the Accession Agreement, with the intention of testing the applicability, integrity and functionality of its application with EU as one of the parties. Careful examinations of how the EU Treaties may become accommodated to the DAA’s inter-party complaint procedures are provided, whereas several consensual arguments have been laid down to make certain that the inter-party procedure may be invoked in the EU context as well however several safeguards need be introduced to ensure the EU law autonomy in this regard. The issue of abstract control of EU law under the inter-party complaint mechanism is also considered in the light of EU law autonomy sensitivity. Briefly, the chapter also covers the possibility for CFSP measures to become attacked before the Strasbourg Court, the latter being a first-instance court for such branch of EU law. The chapter concludes by arguing that the inter-party mechanism under the DAA and ECHR may allow space for reconciliation with the EU law, with EU being a party that may file and become attacked under this mechanism before the Strasbourg Court (certainly EU law autonomy questions implicitly raised there as well).
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Notes
- 1.
This type of action is the most common of its kind in conventional international law. See: Robertson (1959), p. 397.
- 2.
This type of dispute settlement has existed even before the WWII. However, its use had followed mainly informal patterns and did not entail human rights disputes as such, but stuff like borders between states or commerce between them. See an account of the historical route of the international dispute settlement and its development, at: Caldwell (1920); See also: Shelton (1989), p. 15, on the basic idea in international law that states are entitled to protect their citizens against the human rights violations of other states.
- 3.
Licková (2008), p. 479; To note, ECHR gives full authority to each state party to utilize and to become subject to this mechanism, which does not appear with e.g. in the International Covenant on Civil and Political Rights, wherein many state parties have not given jurisdiction to become subjects to the inter-state mechanism. See: Heffernan (1997), p. 88; In the ICCPR case, even though the parties might have submitted to the Commission’s inter-state jurisdiction, they are not obliged to implement its recommendations, adding that there is no binding effect of such recommendations. See e.g.: Comment (1978), p. 899; Cf: Pasqualucci (1994/1995), pp. 313 et seq.
- 4.
An EU inter-state complaint, e.g.: Court of Justice of EU, France v UK, Case 141/78 [1979] ECR 2923.
- 5.
The UN Charter, e.g., establishes that the disputes between the UN members should normally be referred to the International Court of Justice for resolution. See: Article 36(3) of the UN Charter; See also: Schreuer (2008), p. 965.
- 6.
To this point, Gragl argues that it is the political implications which have basically prevented the use of the inter-state mechanism under the ECHR, therefore today there are only a few inter-state cases that have appeared in practice. See: Gragl (2013), p. 139.
- 7.
Shany (2004), p. 816.
- 8.
Pauwelyn (2004), p. 913.
- 9.
See: Costa (2003), p. 455; See also: Grabenwarter (2009) (the entire section on inter-state procedure in the ECHR system); Lock (2010), p. 795; See also relevant caselaw of this type, such as: ECtHR, Ireland v. United Kingdom, Appl. No. 5310/71, Judgment of the Court of 18 January 1978; ECtHR, Denmark v. Turkey, Appl. No. 34382/97, Judgment (Friendly Settlement) of the Court of 5 April 2000; ECtHR, Cyprus v. Turkey (IV), Appl. No. 25781/94, Judgment of the Court of 10 May 2001.
- 10.
Gragl (2013), p. 174.
- 11.
Compare this jurisdiction with that of the The International Convention on the Elimination of All Forms of Racial Discrimination, wherein the jurisdiction of the Court does not depend from the addresses. See e.g. Comment (1978), p. 895.
- 12.
Jacobs (2007), p. 11.
- 13.
This provision, according to Gragl, by changing the name of the heading from ‘inter-state’ to ‘inter-party’, accommodated the supranational features of the EU as a non-state entity into the ECHR system. See: Gragl (2013), p. 184.
- 14.
Gragl (2013), p. 184.
- 15.
It is important to note, however, that there was no application under this mechanism between EU Member States since the founding of the EU structures. See: Gragl (2013), p. 175.
- 16.
Gragl (2013), p. 175.
- 17.
Gragl (2013), p. 174/5.
- 18.
Art. 33, ECHR.
- 19.
International Court of Justice, Advisory Opinion on the Competence of the General Assembly for the Admission of a State to the United Nations, I.C.J. Reports 1950, p. 8 [emphasis added].
- 20.
- 21.
To make a short digression from the subject, the EU Court has always liked to match the understandings of concepts in Member States’ legal orders and the EU legal order. For instance, it had ruled that the notion of commercial policy has ‘the same content whether it is applied in the context of the international action of a State or to that of the Community’. See: Court of Justice of EU, Commission v Council, Case 45/86 [1987] ECR 1493, para 16. If the EU Court would apply this view with the same degree of deference to the understanding of the inter-party mechanism, there would seem no dilemma on recepting the latter as fully tolerable also under the EU law.
- 22.
- 23.
- 24.
One of the interesting proposals to accommodate the possibility for the EU-originated parties to get access to international arbitration tribunals—without violating Art. 344 TFEU—is to consider those tribunals as being Member States’ arbitration courts. See this, at: Von Papp (2013), p. 1081.
- 25.
It is normally proposed that the EU Court increase its deference to its co-European court, the Strasbourg Court, in order to envisage a more structured human right protection that currently does not seem to be the case in Europe. See e.g. Gerards (2011), p. 81 & 85 et seq.
- 26.
Court of Justice of EU, Case C-459/03 Commission v Ireland (Mox Plant) [2006] ECR I-4635, para 123; See also: Court of Justice of EU, Opinion 1/91 [1991] ECR I-6079, para. 35; Court of Justice of EU, Opinion 1/00 [2002] ECR I-3493, paras. 11 and 12; See also: Martinico (2012), p. 424.
- 27.
This includes any international law tribunal. See generally: Lavranos (2006), p. 224 et seq.
- 28.
- 29.
On basis of the Haegeman doctrine, as ruled in: Court of Justice of EU, R & V Haegeman v Belgian State, Case 181/73 [1974] ECR 449, paras. 4–6.
- 30.
As opposed to the scope of this chapter, Gragl also considers it relevant to examine (and offers a separate chapter on) the EU’s use of inter-party complaint procedure before the Strasbourg Court as an external human rights policy against potential third countries. This book clearly—in the same line with Gragl—considers that there is no dispute on the fact that the DAA and Art. 344 TFEU do not make any prohibition—therefore permit—the utilization of the inter-party mechanism by the EU and its Member States against non-EU ECHR contracting parties. The use of the inter-party jurisdiction of the Strasbourg Court against the non-EU ECHR contracting parties as an external human rights policy by the EU is examined profoundly by Gragl. See: Gragl (2013), p. 197–204.
- 31.
- 32.
Gragl (2013), p. 21.
- 33.
Gragl (2013), p. 22.
- 34.
On this notion, see e.g.: Schreuer (2008), p. 965.
- 35.
Schreuer (2008), p. 978.
- 36.
See also: Court of Justice of EU, Opinion 1/91 (1991) ECR I-6079.
- 37.
Quirico (2010), p. 38.
- 38.
E.g.: see Bernhard (2011), para 1; Gragl also proposes that the wording ‘treaties’ of the above provision covers also secondary law and international agreements of EU legal order. Gragl argues that this approach has also been confirmed by the Luxembourg Court in Opinion 1/91, although he does not reason carefully such statement. See: Gragl (2013), p. 176; One may agree with Gragl, however, if reference is made to Mox Plant, which rather well takes that position (see Mox Plant infra).
- 39.
Gragl notes that EU Member States may use Art. 258/259 TFEU (infringement proceedings), Art. 263 TFEU (action for annulment), and Art. 265 TFEU (action for failure to act) as tools to solve their potential EU law conflicts inter se before the Luxembourg Court—as opposed to Art. 33 ECHR. See: Gragl (2013), p. 177.
- 40.
- 41.
Regarding the scope of acts that may fall under this constitutional domain, Art. 24 (1) TEU reads: ‘The Union’s competence in matters of common foreign and security policy shall cover all areas of foreign policy and all questions relating to the Union’s security, including the progressive framing of a common defence policy that might lead to a common defence.’.
- 42.
This therefore means that the EU Court has jurisdiction to rule on restrictive measures against persons adopted by Council on the basis of Chapter 2 of Title V of the Treaty on European Union. Such jurisdiction of the EU Court thus comes under the scope of prohibitions of Art. 344 TFEU.
- 43.
See e.g. generally: Eckes (2013), p. 282.
- 44.
Cremona (2003), p. 1356.
- 45.
European Parliament Resolution of 19 May 2010 on the institutional aspects of the accession of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms (2009/2241(INI)), para. 1.
- 46.
E.g.: Eckes (2013), p. 283.
- 47.
Lavranos (2006), p. 234.
- 48.
- 49.
See also: Shany (2004), p. 816.
- 50.
- 51.
- 52.
Court of Justice of EU, Case 12/86, Demirel [1987] ECR 3719, para. 11; Court of Justice of EU, Case C-459/03, Commission v. Ireland (Mox Plant) [2006] ECR I-4635, note 26, para 85.
- 53.
See also: Court of Justice of EU, Hauptzollamt Mainz v C.A. Kupferberg & Cie KG a.A., Case 104/81 [1982] ECR 3641, para. 11–13.
- 54.
Weiler (1999), p. 177.
- 55.
Where EU Court tends to be rigid, e.g.: Shany (2004), p. 827.
- 56.
Facilitating mixed nature of international agreements has been a rather loaded function of the Luxembourg Court. See a rich example, at: Court of Justice of EU, Opinion 2/00 [2001] ECR I-9713; See also a general article on the nature and scope of Luxembourg’s jurisdiction, at: Heliskoski (2000).
- 57.
Court of Justice of EU, Case C-459/03 Commission v. Ireland (Mox Plant) [2006] ECR I-4635, note 26, para 93.
- 58.
Regarding the exclusive competence of the EU, Art. 3(2) TFEU reads: ‘The Union shall also have exclusive competence for the conclusion of an international agreement when its conclusion is provided for in a legislative act of the Union or is necessary to enable the Union to exercise its internal competence, or insofar as its conclusion may affect common rules or alter their scope.’.
- 59.
Court of Justice of EU, Case C-13/00 Commission v. Ireland, para. 14; See also: Court of Justice of EU, Meryem Demirel v Stadt Schwäbisch Gmünd, Case 12/86 [1987] ECR 3719, para. 12.
- 60.
E.g.: Marsden (2009), p. 312, on the mixed nature of this agreement. See also: Koutrakos (2010), p. 485, on the jurisdiction of the Court on mixed agreements. Cf.: Court of Justice of EU, Hermès International v FHT Marketing Choice BV, Case C-53/96 [1998] ECR I-3603, para. 29, where the EU Court ruled that it may not nevertheless interpret the exclusive competences of Member States that fall within a mixed agreement.
- 61.
See e.g.: Koutrakos (2010), p. 485.
- 62.
E.g.: Cardwell and French (2007), p. 123; See e.g.: Court of Justice of EU, Hauptzollamt Mainz v CA Kupferberg & Cie KG aA, Case C-104/81 [1982] ECR 3641, para. 14, where the EU Court insists that it has the exclusive competence to define the legal nature of effect of an international agreement; Contra: Gragl insists that the Convention, from the perspective of EU law post-accession, will not be a mixed agreement. See: Gragl (2013), p. 177. I fully disagree with Gragl for two basic reasons: first, the respect for the Convention remains in the competence of both the EU and Member States when they implement EU law, therefore acting as agents of EU, and, secondly, it is both the EU and Member States which stand as contracting parties to the Convention on their own right, but often for the same subject of actions or omissions (wherein both the EU and its Member States participate in taking measures through a joint responsibility and shared competence in many policy fields, such as CFSP, judicial and home affairs, and many others.
- 63.
- 64.
Court of Justice of EU, Case C-459/03 Commission v. Ireland (Mox Plant) [2006] ECR I-4635, note 26, para 86.
- 65.
E.g.: Koutrakos (2006), p. 152; See also: Court of Justice of EU, Merck Genéricos – Produtos Farmacêuticos v Merck, Case C-431/05 [2007] ECR I-7001, para. 31 et seq.
- 66.
E.g.: Koutrakos (2010), p. 485.
- 67.
Annex B to Council Decision 2002/628/EC [2002] OJ L 201/48; See similarly the Statute of the International Renewable Energy Agency, which in this regard states: ‘In their instruments of ratification or accession, the organisations referred to above shall declare the extent of their competence with respect to the matters governed by this Statute.’ Council Decision of 24 June 2010 on the conclusion of the Statute of the International Renewable Energy Agency (IRENA) by the European Union (2010/385/EU), Art. 6 (C).
- 68.
Bjoerklund (2001), p. 380.
- 69.
Court of Justice of EU, Case C-459/03, Commission v Ireland (MOX Plant) [2006] ECR I-4635, note 26, para. 94 et seq.; Cf.: Koutrakos (2010), p. 482, arguing that the Court’s case law demonstrates that implied external powers may exist even when they are not EU exclusive; On a general analysis on the implied competence, see also: Schütze (2004), p. 229 et seq (The Court in ERTA ‘speaks the language of teleological interpretation under the aegis of the effect utile logic: in the light of the general scheme of the Treaty, the Community’s power to adopt “any other appropriate provision” to give effect to the Community’s transport policy objectives must be interpreted, in the perception of the Court, as including the legal power to enter international agreements.’ Ibid., p. 231); See also on this: Tridimas and Eeckhout (1995).
- 70.
Court of Justice of EU, Case C-459/03, Commission v Ireland (MOX Plant) [2006] ECR I-4635, note 26, para. 95.
- 71.
By contrast, in Opinion 2/91 the Court has ruled that: ‘In any event, although, under the ILO Constitution, the Community cannot itself conclude Convention No 170, its external competence may, if necessary, be exercised through the medium of the Member States acting jointly in the Community’s interest.’ See: Court of Justice of EU, Opinion 2/91 (Convention No. 170 ILO on safety …) [1993] ECR I-1061, para 5; This shows that the EU Court would not nevertheless bar EU Member States from exercising its competences in cases when the international treaty—because of its organizational nature—does not make this possible for the EU itself. In this scenario, it should be assumed that although Member States are practically exercising that competence it is the EU which has elected and to which that competence belongs.
- 72.
See e.g.: Churchill and Scott (2004), p. 664, on the same issue on the Mox Plant case.
- 73.
Cardwell and French (2007), p. 123.
- 74.
Court of Justice of EU, Case C-459/03, Commission v Ireland (MOX Plant) [2006] ECR I-4635, note 26, para. 126.
- 75.
See e.g.: Marsden (2009), p. 316 et seq.
- 76.
Court of Justice of EU, Case C-459/03, Commission v Ireland (MOX Plant) [2006] ECR I-4635, note 26, para. 112 et seq.; See also: Churchill and Scott (2004), pp. 658 et seq; Lavranos (2008), p. 582 (‘The ECJ concluded that the matters covered by the provisions of UNCLOS relied upon by Ireland before the arbitral tribunal are “very largely” regulated by Community law.’).
- 77.
Cf.: Churchill and Scott (2004), p. 664 et seq, on how this was interpreted in Mox Plant.
- 78.
- 79.
On the ‘mirrored provisions’ concept on the Mox Plant, see: Cardwell and French (2007), p. 122; Cf.: Court of Justice of EU, Opinion 1/91 [1991] E.C.R. I-6079, para. 39 et seq, for similarities with this argument.
- 80.
Court of Justice, Opinion 1/03 (Lugano Convention), [2006] ECR I-1145, para. 133.
- 81.
For instance, the Luxembourg Court has ruled in Parliament v Council and Commission that if the EU does not have exclusive competence in a certain policy field then ‘the Member States are not precluded from exercising their competence in that regard collectively in the Council or outside it.’ Court of Justice of EU, Parliament v Council and Commission, Joined Cases C-181/91 and C-248/91 [1993] ECR I-3685, para. 16; The latter standard, however, does not render any importance when it comes to the external borders of jurisdiction with international tribunals, as, there, the EU Court would still insist to have itself on the front.
- 82.
Court of Justice of EU, Case C-459/03, Commission v Ireland (MOX Plant) [2006] ECR I-4635, note 26, para 135.
- 83.
Accord.: Court of Justice of EU, Parfums Christian Dior SA and Tuk Consultancy BV and Assco Gerüste GmbH, Rob van Dijk, and Wilhelm Layher GmbH & Co. KG, Joined Cases 300/98 and 392/98 [2000] ECR I-11307, paras. 35 [emphasis added] (‘… where a provision […of an international agreement…] can apply both to situations falling within the scope of national law and to situations falling within that of Community law, as is the case in the field of trademarks, the Court has jurisdiction to interpret it in order to forestall future differences of interpretation.’).
- 84.
Court of Justice of EU, Case C-459/03, Commission v Ireland (MOX Plant) [2006] ECR I-4635, note 26, para. 155.
- 85.
On the Doctrine, see e.g.: Miiller (2007), p. 43.
- 86.
Gragl (2013), p. 183.
- 87.
- 88.
Gragl rightly argues that the drafters of the DAA did not intend to put a reservation on the issue of inter-party jurisdiction of the Strasbourg Court on EU-related parties. With that decision, implicitly understood, they basically agreed to conclude an internal ‘special agreement’ that refers directly to the Convention to exclude the inter-party jurisdiction of the Strasbourg Court. See: Gragl (2013), p. 184.
- 89.
Court of Justice of EU, Demirel, Case 12/86 [1987] ECR 3719, para. 11; On Demirel, see also a broad analysis, at: Weiler (1992), p. 72 et seq.
- 90.
See some general criticisms on the way the Luxembourg Court has extended its jurisdiction on the interpretation of international agreements which are considered part of EU law, at: Hartley (1999), p. 31 et seq.
- 91.
- 92.
See also: Draft articles on the law of treaties between States and international organizations or between international organizations with commentaries 1982, p. 59 et seq.
- 93.
Gragl in this regard argues that Art. 55 ECHR seems to be far more flexible on the exclusive jurisdiction of the Strasbourg Court compared to Art. 344 TFEU. Such nature of this provision allows for more coherence and harmony between the two legal regimes. See: Gragl (2013), p. 179.
- 94.
See Frowein cited at: Gragl (2013), p. 180 (footnote 40).
- 95.
Cf: Analysis (1997), p. 239/40, which questions the suitability if such an agreement could also be made with a smaller group of contracting parties.
- 96.
Contra: Gragl (2013), p. 180, who maintains, referring to Cyprus v. Turkey, that such an agreement may also be formed if assented merely a by smaller number of contracting parties. The Strasbourg Court had ruled in Cyprus v. Turkey that: ‘The Commission concludes that it is not prevented from examining the present application on the ground that there exists a “special agreement” to this effect between the two High Contracting Parties concerned. The Commission would add that, generally speaking, the performance of its functions under Article 19 (Art. 19) of the Convention cannot in any way be impeded by the fact that certain aspects of the situation underlying an application filed with it are being dealt with, from a different angle, by other international bodies.’ (ECtHR, Cyprus v. Turkey, Application no. 25781/94, Decision on the Admissibility of 28 June 1996, part. III). Reading this finding of the Court carefully, one may not gain the impression that the Court fully agrees that the ‘special agreement’ be allowed also between a smaller number of high contracting parties, and that for two reasons: first, in the above-mentioned conclusion, the Court does not say it explicitly that such ‘special agreement’ may be made by a smaller number of parties in the form of an agreement that excludes the applicability of Art. 55 ECHR; second, the Court basically only refers to the applicant’s argument, and tries to negatively reply by basically saying that even though there may be such an agreement—which it does not say whether there is one and on basis of which conditions that may be formed—it does not take that as a basis for derogating from its jurisdiction, therefore calling the case admissibly. Should the Court have considered this ‘special agreement’ as eligible, it would have of course called the case inadmissible. However, it did not for the mere reason that it considered such ‘special agreement’ as not qualified to stand as derogation for the Court’s inter-state jurisdiction.
- 97.
Lock (2009), p. 392/3; Lock’s point, which is also recalled by Gragl, that the travaux preparatoires confirm the argument that the ‘special agreement’ may be made also by a smaller number of parties does not seem fully convincing due to these reasons: first, the travaux preparatoires merely demonstrate that there was a proposal from the Swedish Delegation for the ‘special agreement’ to mean that it may be made between a smaller number of parties. There is no confirmation in the travaux preparatoires that such proposal was voted as based in the meaning which the Swedish Delegation had proposed to give to it. The mere fact that there was no debate on that proposal, and no other delegation proposing something else, is insufficient to take it for granted that all parties agreed with the proposed meaning of the Swedish Delegation; second, Lock himself (Ibid, p. 392/3) notes that the proposal of the Swedish Delegation was slightly changed when it got voted by other delegations, which basically means that no one took it for granted that the original meaning of the Swedish-version proposal for current Art. 55 ECHR was the final one.
- 98.
Gragl argues generally in the same line, by maintaining that the inter-state jurisdiction for the Strasbourg Court may allow for derogations. However, as those derogation need to be narrowly construed, the Convention should logically be mentioned and referred to in that ‘special agreement’. See: Gragl (2013), p. 180–182.
- 99.
Gragl comes immediately to the conclusion that, due to the fact that the Convention is not mentioned specifically in this special agreement, there seem little or no chances of reconciling the exclusive jurisdictions on inter-party issues of the Luxembourg and Strasbourg Court. See: Gragl (2013), p. 182.
- 100.
Gragl follows a shorter path to making this observation. He, at first and from a very general perspective, notes that it would not be possible to regard these two bases as ‘special agreement’ in light of Art. 55 ECHR for two basic reasons: first, because these two bases do not mention ECHR, and, second, because not all parties to the ECHR have assented that special agreement. However, he goes further to argue that, referring to Lock, such two bases have been drafted too generally to be able to be regarded as referring to a ‘special agreement’ in light of Art. 55 ECHR. See Gragl’s chapter on inter-party jurisdiction under the DAA: Gragl (2013), pp. 174 et seq.
- 101.
Gragl proposes that in this kind of normative conflict one may apply the ‘disconnection clause’, which basically means that if the contracting parties to an international agreement are EU members, they will apply EU law inter se to the exclusion of the law of that international agreement. Referring to Klabbers, Gragl proposes that the law of that international agreement may be decided to be applied only in the external relations of the EU and its members. See: Gragl (2013), p. 189. Although the idea on the ‘disconnection clause’ may sound well in terms of the inter-party jurisdiction, it may however lead to the wrong direction, as the Luxembourg Court may wish to see the same clause applied also to the individual complaint jurisdiction with regard to human rights protection under the Strasbourg system. That would render the entire context of EU accession to ECHR moot and practically without any taste of relevance; In addition, Gragl (Ibid, p. 189) goes further by arguing that Art. 5 DAA serves the idea of the ‘disconnection clause’. I fully disagree with this. Art. 5 DAA does merely qualify the nature of the Strasbourg Court proceedings as subsidiary to the EU law judicature: it does in no way try to say that the Convention’s inter-party mechanism is being replaced with the EU law inter-state mechanism. Such intention may be observed nowhere in that provision. This basically means that Gragl is not right with the argument that Art. 5 DAA provides for a ‘disconnection clause’ that excludes the Convention law.
- 102.
VCLT Art 31, 2(b).
- 103.
VCLT Art 31, 3 (a, b).
- 104.
Draft Articles On The Law Of Treaties With Commentaries 1966. Text adopted by the International Law Commission at its eighteenth session, in 1966, and submitted to the General Assembly as a part of the Commission’s report covering the work of that session (at para. 38). The report, which also contains commentaries on the draft articles, appears in Yearbook of the International Law Commission, 1966, vol. II, p. 221.
- 105.
- 106.
Cf.: Marsden (2009), p. 312, explaining how this was refused in Mox Plant.
- 107.
Art 5 DAA; Cf.: Gragl basically argues that this provision as such does not bar the function and operation of Art. 344 TFEU. See: Gragl (2013), p. 186. Gragl may be right in the sense that this provision merely serves the Convention system, but it does not in principle define the meaning of dispute settlement under EU law and Art. 344 TFEU scope.
- 108.
Art 35.2.b ECHR; Gragl, in this regard, notes that with this provision the Strasbourg Court is assured the function of the subsidiary court; one that does not compete with the Luxembourg Court on horizontal level. See: Gragl (2013), p. 188.
- 109.
Cf.: Gragl notes that the rule on exhaustion does not apply on every inter-party case; it applies only when a contracting party submits an inter-party application against another contracting party with the aim of protecting its own individual citizens. If a contracting party files an inter-party application of the actio popularis form, it needs not to exhaust legal remedies. See: Gragl (2013), p. 187/8. This said, it is basically maintained that, according to this line of reasoning, Art. 5 DAA should be read as having an effect only in relation to inter-party cases that contracting parties submit to protect the interests of their individual citizens; it does not apply to actio popularis type of inter-party applications.
- 110.
See the overall meaning of Art. 5 DAT as a means to start this analysis: Groussot et al. (2011), p. 10.
- 111.
Contra: Gragl, through a brief pathway, comes to the conclusion that Art. 5 DAA reconciles the EU law autonomy (including Art. 344 TFEU) with the Convention’s inter-party mechanism. See: Gragl (2013), p. 188. It is argued here, however, that Gragl’s point does not address profoundly the implications which the Luxembourg Court would usually pushes for—as examined below, and as also demonstrated with the Luxembourg’s Opinion 2/13—something that may mislead the overall expectation from this process.
- 112.
Art 27 VCLT. This rule being so old as also found in: Permanent Court of International Justice, Greco-Bulgarian Communities Advisory Opinion PCIJ (1930), no. 17 (“it is a generally accepted principle of international law that in the relations between Powers who are contracting Parties to a treaty, the provisions of municipal law cannot prevail over those of the treaty.” Para. 81); Available at: http://www.worldcourts.com/pcij/eng/decisions/1930.07.31_greco-bulgarian.htm.
- 113.
International Court of Justice, Order of 8 April 1993 on the request for the indication of provisional measures in the case of the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro). Separate opinion of Judge ad hoc Elihu Lauterpacht (I.C.J. Reports 1993, 440), para. 100; One should note that it is not the intention here to regard the VCLT as having the nature of ius cogens, however, referring to Kadi, the EU Court left the impression that, as ius cogens form part of customary international law, it respects the entire spectrum of customary international law (including VCLT which has some very relevant sections that regulate the latter and thus have the status of customary international law) as something it defers to rather respectably. VCLT’s mentioning in Kadi makes this argument specific.
- 114.
Court of Justice of EU (Court of First Instance of the European Communities), Yassin Abdullah Kadi v. Council of the EU and Commission of the European Communities, Case T-315/01, judgment of 21 September 2005, para. 227 (‘it must be noted that the Vienna Convention on the Law of Treaties, which consolidates the customary international law and Article 5 of which provides that it is to apply “to any treaty which is the constituent instrument of an international organisation and to any treaty adopted within an international organisation”, provides in Article 53 for a treaty to be void if it conflicts with a peremptory norm of general international law (jus cogens), defined as “a norm accepted and recognised by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character”’).
- 115.
Official Commentary on DARIO, p. 15.
- 116.
One should omit from dealing with the ‘names’ that the DAA revises in the Convention, as that is done more or less for symbolic reasons, whereas the accession as such produces a state-like position for the EU in the Convention system. The same view has been ruled by the Luxembourg Court in Opinion 2/13 (para. 193).
- 117.
Emphasis added.
- 118.
Two cases of the EU Court seem to suggest the later pays rather important respect for international law. These two cases are: Court of Justice of EU, Poulsen and Diva, Case C-286/90 [1992] ECR 1-6019, and, Court of Justice of EU, Racke, Case C-162/96 [1998] ECR 1-3655.
- 119.
Cf.: With regard to the potential exclusion of the EU from the ECHR’s inter-party mechanism, Gragl, referring to Christoffersen, rightly argues that the system of protection under the Convention—after the EU accedes to the ECHR—must be the same for the EU as for the other high contracting parties and subject to the same terms of obligations. (See: Gragl 2013, p. 184). Otherwise, the proclaimed objective of the DAA to offer include the EU into an equal footing with the other European high contracting parties would make no sense in practice.
- 120.
Human Rights Committee, (Issues Relating to Reservations made upon Ratification or Accession to the Covenant or the Optional Protocols thereto, or in Relation to Declarations under Article 41 of the Covenant), General Comment No. 24, 4 November 1994 (CC PR/C/21/Rev.1/Add. 6), para. 12.
- 121.
Cf: Gragl basically argues that the DAA does not govern the internal EU law issues relating to the inter-party jurisdiction in the context of Art. 344 TFEU, and that it not something that one may expect. See: Gragl (2013), p. 185; However, it is the Luxembourg Court’s Opinion 2/13 which requires the opposite: it invites the DAA to regulate this ‘issue of EU law’, by specifically requiring that the Strasbourg Court be denied jurisdiction to adjudicate cases under the inter-party procedure if EU or its Member States wish to use it inter se. See supra the subchapter on Opinion 2/13.
- 122.
Cf. Gragl takes the example of Mathews v. UK imagined in an inter-party scenario to demonstrate that it may be well operated also within the Luxembourg Court’s current jurisdiction. In that imaginary case, Spain would file an inter-party application against UK before the Luxembourg Court (infringement proceedings) by arguing that UK had violated EU law (the Convention’s right to vote) by not providing the right to stand for elections to Ms. Mathews from Gibraltar. Only after this procedure would have been exhausted, then Spain could have applied before the Strasbourg Court. In that scenario, Gragl proposes that the Strasbourg’s inter-party review would not touch upon EU law autonomy, because it would merely declare on the Luxembourg’s decision on this issue from the perspective of the Convention standards. This may be an example to demonstrate an EU Member State applying against another EU Member State. The same procedure would apply if an EU Member State would intend to file an application before Strasbourg Court against the EU. See: Gragl (2013), p. 190–197.
- 123.
See in the context of Mox Plant: Churchill and Scott (2004), p. 663; See also: Court of Justice of EU, Case C-25/94 Commission v Council (FAO) [1996] ECR I-1469, and, Court of Justice of EU, Case C-266/03 Commission v Luxembourg [2005] ECR I-4805.
- 124.
Referring to Schott, Gragl points that—in the context of the inter-party debate—the scope of Art. 344 TFEU should not in principle cover issues that may be subject to the Convention but outside the scope of EU law (Gragl links this to the Member States’ obligation within the ‘scope of EU law’ formula, under Charter’s Art. 51). This means that, in Gragl’s view, which seems quite contrary to the findings of the Mox Plant approach in which Luxembourg Court chose a wide-discretion formula to perform the competence attribution test examined supra (and quite differently to the conclusions of this book), issues outside the EU competence are precluded from the scope of Art. 344 TFEU and therefore may be filed before the Strasbourg Court without needing to be exhausted or even considered in light of the Luxembourg’s restrictive jurisdictional criteria. See: Gragl (2013), p. 196/7. Gragl, however, does not offer a feeding debate on how broadly the EU Court interprets the scope of EU ‘competence’ for purposes of Art. 344 TFEU, something that would have likely changed Gragl’s direction of this argument.
- 125.
See with reference to Mox Plant: Churchill and Scott (2004), p. 663.
- 126.
Permanent Court of International Justice, Advisory Opinion on the Competence of the ILO to Regulate Agricultural Labour, P.C.I.J. (1922), Series B, No. 2/3, p. 23.
- 127.
Cf.: Gragl (2013), p. 272, who, although not taking the road taken by the above chapter to examine this issue from an in-depth perspective, comes to the general conclusion that the DAA should not be read as prohibiting the operation of the inter-party mechanism post-accession.
- 128.
US Supreme Court, Murray v. The Charming Betsy, 2 Cranch 64, 118 (1804), p. 6.
- 129.
Bradley (1998), p. 495.
- 130.
Quoting Fitzpatric, at: Bradley (1998), p. 495/6.
- 131.
One may disagree with this statement with the argument that Murray standard may not apply in case there is a horizontal interface between two acts of international law, namely the EU Treaties and the Convention. I oppose this view and therefore counter-argue that with the EU becoming a contracting party to the Convention, its law (including the EU Treaties) takes the status of domestic law in face of the Convention. From that perspective, such post-accession scenario which is discussed above considers the EU Treaties as domestic law in face of the Convention, therefore the Murray standard applies here as well since EU Treaties (as a domestic law of one of the contracting parties) may not have intended to violate the Convention.
- 132.
Gragl supports roughly the same line of argument of this thesis. He rightly points that the exclusion of the EU from the inter-party mechanism would seriously reduce the scope of EU accession to ECHR on the normal standards of human rights protection, but would also run counter the concept of the Convention as a collective system of human rights law protection. Gragl, referring to Christoffersen, moreover argues that the inter-state mechanism is even more original (as it was the first mechanism installed in the Convention when it was concluded) than the individual complaint mechanism under the Convention system, therefore there seem even less reasons to reject including the EU in the inter-party procedure. See: Gragl (2013), p. 183.
- 133.
See e.g.: Donahue (1980), pp. 379 et seq.
- 134.
Cf.: One may legitimately question whether this scenario may appear in practice as the EU Court has repeatedly ruled that its fundamental rights jurisdiction is limited to situations where Member States act within the scope of EU law, and that scope, in view of Siragusa (examined supra in the subchapter on the ChFR), requires a certain connection between the obligations and objectives of EU law with the Member States’ implementing measures. I tend to disagree with this argument. There are three basic reasons for this. First, there is a huge difference between the Luxembourg Court’s view on the Member States obligations under Art. 344 TFEU with its view on the Member States’ obligations under Art. 51 ChFR. These two treaty bases have different intentions, meaning and scopes. One may not apply the concept which Siragusa has developed with regard to the Member States’ obligations under Art. 51 ChFR to Art. 344 TFEU, as the latter has a very different nature, intention and scope. Just to make one brief argument: merely the ‘competence attribution’ test which the Luxembourg Court has developed in Mox Plant makes the application of the Member States’ scope of obligations under Art. 51 ChFR irrelevant. The Luxembourg Court does not care whether Member States are implementing an EU law objective when they file an application to an external means of dispute settlement, but whether such act may push EU law (on basis of the four tests explained supra) beyond the jurisdictional borders of the EU Court. Second, Ireland v UK is taken as an example of demonstrating how the Luxembourg Court devises its exclusive jurisdiction with regard to external tribunals and treaty regimes. It has very little to do with fundamental rights jurisdiction and the Member States’ obligations under that. The basis whereupon the Member States’ acted when implementing a certain EU law obligation are not relevant on whether the EU Court will bar a certain EU law issue from being reviewed in an external means of dispute settlement or not. And, third, Ireland v UK serves as a perfect case to demonstrate that—when it comes to the competence attribution test which the Luxembourg Court applies with regard to the application of Art. 344 TFEU in a specific case—the EU Court specifically draws attention to the fact that certain pieces of legislation may even not be legislated or have not been legislated under EU law, but the mere fact that they stand as the objectives of EU Treaties in the broad sense makes this test relevant. Fundamental rights remain a core objective of the democratic principles which the EU Treaties’ proclaim; therefore the author of this book considers the main-text argument as valid.
- 135.
ECtHR, Ireland v. United Kingdom, Appl. No. 5310/71, Judgment of the Court of 18 January 1978, para 1 & 2.
- 136.
ECtHR, Ireland v. United Kingdom, Appl. No. 5310/71, Judgment of the Court of 18 January 1978, note 135, para 2.
- 137.
See e.g.: Donahue (1980), p. 390 et seq.
- 138.
ECtHR, Ireland v. United Kingdom, Appl. No. 5310/71, Judgment of the Court of 18 January 1978, note 135, para 167 & 168.
- 139.
Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings.
- 140.
Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012 establishing minimum standards on the rights, support and protection of victims of crime.
- 141.
Directive 2010/64/EU of the European Parliament and of the Council of 20 October 2010 on the right to interpretation and translation in criminal proceedings.
- 142.
See e.g.: Cardwell and French (2007), p. 124.
- 143.
This doubt has been raised a long time ago, e.g.: Analysis (1997), p. 240.
- 144.
ECtHR, Ireland v. United Kingdom, Appl. No. 5310/71, Judgment of the Court of 18 January 1978, note 135, para. 239.
- 145.
ECtHR, Ireland v. United Kingdom, Appl. No. 5310/71, Judgment of the Court of 18 January 1978, note 135, para. 240.
- 146.
On the latter, see e.g.: de Waele (2011), p. 142.
- 147.
The Court here referred to the travaux préparatoires, Document H (61) 4, pp. 384, 502, 703 and 706 (Ireland v. United Kingdom, op. cit. note 9, para. 240); See the original version of the travaux préparatoires, at: Travaux préparatoires of ECHR. Official Version Of The Travaux Preparatoires Of The European Convention On Human Rights ‘Collected edition of the “Travaux préparatoires” of the European Convention on Human Rights/Council of Europe = Recueil des travaux préparatoires de la Convention européenne des droits de l’homme/Conseil de l’Europe’. The Hague: Martinus Nijhoff, 1975–1985.
- 148.
ECtHR, Ireland v. United Kingdom, Appl. No. 5310/71, Judgment of the Court of 18 January 1978, note 135, para. 240.
- 149.
ECtHR, Ireland v. United Kingdom, Appl. No. 5310/71, Judgment of the Court of 18 January 1978, note 135, para. 241.
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Korenica, F. (2015). Inter-Party Mechanism and the EU: Possible Implications from the Strasbourg’s Jurisdiction?. In: The EU Accession to the ECHR. Springer, Cham. https://doi.org/10.1007/978-3-319-21759-8_7
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