Abstract
The article addresses the issue of judicial control of the implementation of Common Foreign and Security Policy at international regional level within the framework of the relaunching of the negotiation in view of the accession of the EU to the ECHR. Considering the extent of jurisdiction of the CJEU in respect of Common Foreign and Security Policy field in the light of its case law (sections 1 and 2), it analyses the question of judicial review of Common Foreign and Security Policy within international regional justice by the ECtHR in the light of the ongoing negotiations (section 3), in the perspective of the relationship between non-national courts (section 3.A), having as background the (2013) Draft Agreement of accession (section 3.B.1). After addressing the relaunching of the negotiation procedure (section 3.B.2) and the issue of CFSP control by the ECtHR according to the recent (re)negotiation meetings (section 3.B.3), some concrete proposals, including for the redrafting of the accession agreement, will be put forward (section 3.B.4), as well as a conclusion (section 4).
Keywords
1. Common Foreign and Security Policy after Lisbon and judicial review
The Treaty of Lisbon has conferred a new global framework to the European Union’s Common Foreign and Security Policy (CFSP), including Common Security and Defence Policy (CSDP): European Union’s External Action, with common aims, values and principles laid down in the Treaty of the European Union (TEU). CFSP, including CSDP, is therefore one of the faces of the new wider context of European Union (EU) External Action – a new macro-field of EU competences – and although the intergovernmental character of CFSP was attenuated, the Masters of the Treaties did not eliminate the ‘specific rules and procedures’ to which CFSP is subject, among which are those regarding the ratione materiae jurisdiction of the Court of Justice of the European Union (CJEU). 1
The topic of the CJEU jurisdiction in relation to CFSP is not new and has been long debated in legal literature, 2 as has the development of the CJEU case law in respect of CFSP matters. 3 However, the recent relaunching of the negotiations between the EU and the Council of Europe in view of the accession of the EU to the European Convention of Human Rights (ECHR) 4 puts forward the opportunity to revisit the issue of the judicial review of the CFSP at the level of the system of the ECHR – in addition to the EU level.
In fact, the jurisdiction of the CJEU in CFSP matters, according to its case-law, though wide, is not yet a full jurisdiction to control either how EU institutions and organs apply the specific provisions regarding CFSP or how EU Member States concur to the development and execution of CFSP, including CSDP. Therefore, it may be asked to what extent the CJEU jurisdiction gap may be overcome in the wider context of the international (regional) legal order – and the judicial control of CFSP may also be ensured – by the European Court of Human Rights (ECtHR) in the light of the (re)negotiation procedure now in course, in view of the accession of the EU to the ECHR, in order to overcome the legal arguments invoked by the CJEU in Opinion 2/13. 5
To address the question, this article will briefly refer to the extent of the jurisdiction of the CJEU on CFSP matters as results from its case law, with respect to CFSP provisions or the acts adopted on the basis of those provisions, as follows from Articles 24, 1, TUE and 275 TFEU – to demonstrate that despite the extension of the CJEU jurisdiction beyond the wording of the treaties there is not yet a full jurisdiction (see section 2). Then – considering the background of the 2013 draft Accession Treaty and Opinion 2/13 – it will mainly focus on the topic of the judicial control of EU CFSP by the ECtHR, as an international regional court, namely in the light of the recent (re)negotiation meetings – and finally will try to put forward some concrete proposals also in respect of the redrafting of the Agreement on the EU accession (see section 3).
2. The jurisdiction in CFSP matters in the light of the CJEU case-law
Despite the prima facie narrow terms in which the jurisdiction of the CJEU in CFSP matters was foreseen in the post-Lisbon era in Articles 24, 1 (§ 2) and 40 TEU – monitoring compliance with Article 40 (ex-47) TEU, according to which the CJEU can adjudicate on reciprocal delimitation of CFSP and other areas of EU competences and the appropriate legal basis for the adoption of EU secondary law 6 – and in Article 275 TFEU – review of the legality of decisions providing for restrictive measures against natural or legal persons adopted by the Council on the basis of Chapter 2 of Title V of the TEU, that is, specific provisions on the CFSP, in proceedings brought in accordance with the fourth paragraph of Article 263 TFEU –, the case law of the CJEU has up-hold its jurisdiction in much wider terms, 7 mainly in three ways.
First, by interpreting primary law in order to affirm its jurisdiction in CFSP matters in principle. The CJEU has considered that since the provisions of Articles 24, 1, 2nd subparagraph, TEU and 275, 1st paragraph, TFEU introduce a derogation from the rule of general jurisdiction which Article 19 TEU confers on the Court to ensure that in the interpretation and application of the Treaties the law is observed, they must be interpreted narrowly. 8
Second, by affirming its jurisdiction regarding CFSP related matters: 9 EU ius tractuum procedure in the field of CFSP (Article 218, 10 TFEU) and adoption of EU acts within the implementation of CFSP, including CSDP. In the case Parliament v. Council, 10 the CJEU clarified the scope of its jurisdiction regarding CFSP, considering that it had jurisdiction to interpret and apply a provision such as Article 218 TFEU which does not fall within the CFSP, even though it lays down the procedure on the basis of which an act falling within the CFSP has been adopted and therefore to adjudicate on the violation of that article – that is to say on the validity of a secondary law CFSP act. In the same case the CJEU annulled the controversial (CFSP) Council Decision, 11 thus protecting the right of the European Parliament to be informed on the negotiation and conclusion of EU agreements based on the specific provisions on CFSP. 12, 13 Moreover, the CJEU affirmed that it had jurisdiction regarding measures related to the award of a public contract within the Eulex Kosovo Mission, which gave rise to expenditure to be charged to the EU budget and subject to the provisions of the EU Financial Regulation; 14 acts of staff management adopted in the context of the CSDP EU Policy Mission in Bosnia and Herzegovina; 15 as well as to review acts of staff management of the EU Satellite Centre. 16, 17
Third, by clarifying the judicial procedures through which the CJEU can exercise its jurisdiction regarding CFSP laid down in Article 40 TEU and in Article 275 TFEU. The judicial control exercised by the CJEU on the basis of Article 40 TEU enshrines a legality control by the CJEU of acts adopted by the EU institutions – in the perspective of the ‘balance of institutional powers’ or of ‘the principle of conferral as it applies to institutional powers (Article 13(2) TEU) (…)’. 18 Despite the silence of the wording of Article 40, the CJEU has affirmed in its case law that the control on the basis of that Article may be exercised through an action for annulment, 19 or through a preliminary ruling on the validity of EU secondary law. 20 It has done so in the Rosneft case, 21 where a preliminary ruling was raised within a dispute related to EU restrictive measures adopted by the EU towards certain Russian companies, including Rosneft, 22 and the CJEU affirmed that its jurisdiction to control the respect of Article 40 TEU may be exercised in the framework of a preliminary ruling on validity of EU secondary law, as foreseen in Article 267 TFEU; and also that the control by the CJEU of the validity of the restrictive measures adopted under the CFSP against natural or legal persons is not limited to the action for annulment (to which Article 275 TFEU expressly refers), 23 but can also be exercised within a preliminary ruling procedure. In this case, the CJEU ruled that Articles 19, 24 and 40 TEU, 275 TFEU and 47 of the Charter must be interpreted as meaning that the Court has jurisdiction to give preliminary rulings, under Article 267 TFEU, on ‘the validity of an act adopted on the basis of provisions relating to the CFSP,…provided that the request for a preliminary ruling relates either to the monitoring of that decision’s compliance with Article 40 TEU, or to reviewing the legality of restrictive measures against natural or legal persons’. 24
More recently, in case Bank Refah Kargaran v. Council, the CJEU further affirmed that the General Court and, in case of appeal, the Court of Justice have jurisdiction to hear and determine an action for damages in respect of restrictive measures provided for in CFSP decisions. 25 –27
3. Judicial review of CFSP and international (regional) justice
Even though the CJEU case-law has affirmed and widened its competence in CFSP matters beyond the wording of the treaties, the questions of the limits of its ratione materiae jurisdiction in respect of all the other (at present non-justiciable) CFSP acts or omissions, including EU Member States’ acts and omissions and, in general, of the development of EU competences in this area, and of how to overcome those limits, are still opened. Those questions are as more important as wider and complex are the aims and scope of the EU action in respect of CFSP, including CSDP, which is a core dimension of EU External Action.
A European Union based on the rule of law is not in principle coherent with the absence of judicial control, including in respect of CFSP matters: either in a strict legality review dimension – since EU secondary law in the field of CFSP is adopted according to EU primary law on competence and decision-making procedures – or in a wider legality control dimension regarding the effects in the legal sphere on those to whom EU law is addressed, namely in the case of violation of fundamental rights of a non-state subject.
Moreover, even if national adjudication in the field of CFSP is a legal possibility, since ‘Nothing in the treaties suggest that the restrictions applicable to the Court of Justice powers…concern in any way the jurisdiction of Member States’ courts’, 28 it may not be a satisfactory solution 29 since national judicial control is not always possible, in particular where a national act implementing EU law in CFSP matters, including EU CFSP acts, does not exist; and even when such implementation act exists, the control at national level may depend on its legal nature and force or on the legitimacy requirements and procedural rules 30 – and judicial control by national courts may not exist due to the political and policy nature of conducting foreign policy matters by national governments. 31
Therefore, considering the restrains of EU (and national) judicial control of the CFSP, one may question to what extent the control and judicial review of CFSP acts and omissions can (or should) also be exercised at another international regional (European) level, by the ECtHR. The question was put forward, though at a later stage, in the framework of the negotiations on the EU accession to the ECHR and is now been revisited within the 2020 resuming of the negotiations – in the 6th and 7th meetings of the CDDH Ad Hoc Negotiation Group (‘47+1’) that took place in September–October and November 2020.
The opened path of international judicial review by the ECtHR convokes some previous brief remarks on the possible relationship between non-national courts within the framework of international regional (European) justice, since it implies necessarily a relationship between both European (international and supranational) regional courts involved: the CJEU and the ECtHR.
A. Relationships between non-national courts
Besides the examples of relationships between international (or supranational) courts and national courts – within the international and regional legal orders –, a new trend of international justice is observable: formal relationship between different non-national (international, supranational) courts, especially to the extent that the organizations to whose institutional framework those courts belong may participate in other systems of international justice.
The issue of relationship between non-national courts and their respective jurisdiction and, correlatively, between systems of international (or supranational) justice, is not new in international law. It relates mainly either to (informal) judicial dialogue or to competing jurisdiction between courts of different systems 32 and to the (formal) ways of preventing a court to adjudicate on a dispute brought simultaneous to another court and system, or to determine the competent international jurisdiction – in order to avoid different courts ruling on a dispute with judgments that may be contradictory. This is the case for provisions of the founding treaties of some international regional judicial systems, and is also relevant regarding the EU. 33
Furthermore, in the framework of (international) regional justice in Europe the above-mentioned trend has arisen in respect of the formal relationship between the courts of two European legal systems with jurisdiction in the field of human rights/fundamental rights – the CJEU and the ECtHR. This trend derives from the possibility of accession of the EU both to the ECHR, allowed by Protocol 14 to the ECHR and foreseen in Article 6. 2 TEU, as well as to Protocol No 16 (which is already in force and has been ratified and applied by some EU Member States). Although both possibilities may be relevant to the issue of CFSP judicial control in the framework of the system established by the ECHR, only the accession of the EU to the ECHR will be addressed 34 in the light of the resuming of the negotiation meetings in 2020 – and having as background the (2013) draft (revised) Agreement on the accession of the EU to the ECHR and the need to overcome the arguments put forward in Opinion 2/13 in this respect.
B. The control by the ECtHR of violations of the ECHR attributed to EU and/or its Member States in the field of CFSP
1. Background: The jurisdiction of the ECtHR in the field of CFSP according to the draft Agreement on the Accession of the EU to the ECHR and the objections raised in Opinion 2/13
As background of the recent negotiation meetings it must be briefly recalled that according to the final wording of the (2013) draft Agreement, as well as of its Explanatory Report, 35 the jurisdiction of the ECtHR does not exclude – on the contrary, includes – the adjudication on violations of the ECHR and the Protocols thereto to which the EU may accede, arising from acts, measures of omissions of the EU and/or its Member States in the CFSP field of EU competences, including those occurring when the State implements EU law and decisions taken under the TEU (EU CFSP decisions).
The final outcome of the 2013 negotiations in this respect 36 was the following: i) the introduction of a general clause in Article 1 (new 4) of the draft Agreement, on Scope of the accession, in respect of the attribution to the EU Member States of an act, measure or omission of its organs or of a person acting on its behalf (even if such act, measure or omission occurs when the State implements the law of the EU, including decisions taken under the TEU and under the TFEU) and without precluding the EU from being responsible as a co-respondent (for a violation resulting from such an act, measure of omission according to Article 36, 4 of the ECHR and Article 3 of the draft Agreement) – but without an explicit reference to the CFSP as foreseen in the TEU; 37 ii) the inclusion in the Explanatory Report of a paragraph explicitly referring to CFSP. 38 This new paragraph confirms that under EU law acts (measures or omissions) of a Member State implementing EU law, including decisions taken by the EU institutions under the TEU and the TFEU, are attributed to that State (and conversely, considering Article 1, 3 of the draft Agreement, acts, measures and omissions of the EU institutions, bodies, offices or agencies, or of persons acting on their behalf, are attributed to the EU) and that ‘The foregoing applies to acts, measures or omissions, regardless of the context in which they occur, including with regard to matters relating to the EU common foreign and security policy’ – therefore, parallel rules should apply for the purposes of the Convention system as laid down in the above-mentioned general clause of Article 1, (new) paragraph 4.
According to this version of the draft Agreement the jurisdiction of the ECtHR exists irrespective of the CJEU having ratione materiae jurisdiction in that specific field of EU competences, or not, or the exact terms and extent of its jurisdiction as foreseen in Articles 24,1 and 40 TEU and 275 TFEU. Therefore, neither an act, measure or omission of a Member State implementing EU law, including decisions taken under the TEU, nor an act, measure or omission of the EU, including in the field of CFSP, are excluded from the wider international judicial review within the system established by the ECHR. This has been pointed out by EU institutions 39 and the doctrine as an advantage of the accession of the EU in order to overcome gaps in the control of the respect for fundamental rights by the CJEU, 40 but also one of the grounds of the (negative) conclusion of the CJEU in Opinion 2/13. 41
In fact, in its short but assertive motivation in this respect, the CJEU considered that the draft Agreement ‘fails to have regard to the specific characteristics of EU law with regard to the judicial review of acts, actions or omissions on the part of the EU in CFSP matters’: 42 since it would result from the draft Agreement that judicial review of some acts, actions and omissions in the field of CFSP which are not subject to the judicial review of the CJEU (which is inherent to the structure of competences of the CJEU, as laid down in the founding Treaties, that can only be justified in the light of the EU Law), would be conferred to an external organ (the ECtHR), even if this was limited to rights foreseen in the ECHR. In short, according to the CJEU: such jurisdiction, even if limited, cannot be conferred exclusively on an international court which is outside the institutional and judicial framework of the EU when the CJEU under the principle of conferral was not given (full) jurisdiction in CFSP matters. 43
To conclude in this manner, the CJEU, first, stated that as EU law (then) stands, certain acts adopted in the context of CFSP fall outside the ambit of judicial review by the CJEU, given that the situation is inherent to the way in which the Court’s powers are structured by the Treaties and, as such, can only be explained by reference to EU law alone. 44 Moreover, the draft Agreement would entrust the judicial review of acts, actions or omissions performed in the context of CFSP – notably of those whose legality the CJEU cannot, for want of jurisdiction, review in the light of fundamental rights – exclusively to a non-EU body, albeit that such review would be limited to the compliance with the rights guaranteed by the ECHR. 45 And since the CJEU had already found that jurisdiction to carry out a judicial review of acts, actions or omissions on the part of the EU, including in the light of fundamental rights, cannot be conferred exclusively on an international court which is outside the institutional and judicial framework of the EU, 46 the CJEU concluded as stated above: the draft Agreement fails to have regard the specific characteristics of EU law with regard to the judicial review of EU acts, actions or omissions in CFSP matters. 47
This is the reason why further discussion of the situation of EU acts in the area of the CFSP that are excluded from the jurisdiction of the CJEU is taking place within the resuming of the negotiation procedure in view of the EU accession to the ECHR.
2. The relaunching of the negotiation procedure and international judicial review of CFSP
A (new or reviewed) future draft Agreement of accession must answer the questions raised by the CJEU, 48 including in respect of CFSP matters.
From the EU side, besides the case law of the CJEU that may show an intention of approximation of the EU system to the ECHR reversing the negative opinion of the CJEU, 49 the EU institutions considered the relevance of the accession and its relaunching, thus being in favour of one of the three possible options put forward by the doctrine and which, in the light of Article 218, 11 TFEU, were opened with Opinion 2/13: 50 the modification of the draft Agreement.
The work of the Commission, together with the competent working group of the Council, in order to find solutions to the objections raised by the CJEU, led to the presentation to the Council, in May 2019, of a ‘written contribution that addresses in an exhaustive manner all the objections raised by the Court of Justice’. 51 –53
In the Conclusions of the Council Meeting (JHA) of 7–8 October 2019, the Council reaffirmed its commitment to the EU’s accession to the ECHR and ‘agreed to supplementary negotiations directives in order to allow for a swift resumption of the negotiations with the Council of Europe’ and which ‘are designed to take into account the CJ’s Opinion 2/13’. 54 Therefore, by a letter of 31/10/2019 the EU informed the Council of Europe that was ready to resume the negotiations and after initiatives and decisions on the side of the latter, 55 a virtual informal meeting of the ‘47+1 Group’ was held in 22 June. In that meeting the EU Commission presented its position paper on the accession informing that the EU would demand only amendments strictly necessary to address the objections raised by Opinion 2/13 and would not seek exceptions from the ECHR or its control system and that those amendments mainly concern four areas: 56 i) EU-specific mechanism of the procedure before the ECtHR; ii) operation of inter-party applications (Article 33 ECHR) and of references for an advisory opinion (Protocol 16) in relation to EU Member States; iii) the principle of mutual trust between the EU Member States; iv) EU acts in the area of CFSP that are excluded from the jurisdiction of the CJEU.
3. The jurisdiction of the ECtHR in the field of CFSP according to the ongoing (re)negotiation procedure
First of all, the outcome of the recent 6th and 7th negotiation meetings must be considered in order to conclude whether a concrete solution regarding the jurisdiction of the ECtHR in CFSP matters and its relationship with the jurisdiction of the CJEU has been discussed and achieved.
According to the EU Position Paper for the negotiations on the EU accession to the ECHR of 5/3/2020, 57 EU acts in the area of CFSP that are excluded from the jurisdiction of the CJEU is one of the four areas in which the EU seeks amendments to the draft Accession Agreement to the extent strictly necessary to address the objections raised by the CJEU. The issue – perhaps the most difficult to overcome 58 – was included both in the Agenda of the 6th and the 7th negotiation meetings, but so far only discussed in the first one, and no final conclusion has been reached yet. 59
In the 6th negotiation meeting the EU referred to the evolving case-law of the CJEU in CFSP matters widening the scope of its jurisdiction in CFSP matters and that the pending case law could further widen it – therefore there is the need for a solution which would allow the case-law to evolve. In addition to the different view of the delegates (Meeting Report, Item 10, 36.) the representative of the Registry of the ECtHR stated that despite the widening scope of the CJEU jurisdiction, there was a whole scope of CFSP actions which as a rule do not belong to the jurisdiction of the CJEU and that the concern would be that certain important action in this area could escape the application of the ECHR if attributed to the EU without its accession. He further suggested that a possible avenue to accommodate the concerns expressed by the CJEU could be to solve the problem for those acts which are outside the CJEU’s jurisdiction through adjusting the already existing attribution clause in the draft Accession Agreement – the proposal was welcomed by the Chair and several delegations as a possibility to be further considered (Meeting Report, Item 10, 37).
Moreover, the Legal Adviser of the Council of Europe underlined that it did not matter so much to whom CFSP acts were attributable as long as applicants could raise their compatibility with the ECHR before the ECtHR and stated that a clear attribution clause in the draft Agreement for the relevant CFSP situations could be an avenue to pursue that could facilitate the handling of such cases by the ECtHR, which could also be a welcome side-effect in light of his heavy work. According to the Legal Adviser, this would be in accordance with international law, including the draft Articles on the Responsibility of International Organisations, which recognize the possibility of a specific attribution clause to clarify responsibility between international organizations and its Member States (Meeting Report, Item 10, 38).
The Chair of the 6th meeting concluded that there was a common goal that, in order to avoid ‘black holes’ in the European human rights protection, the Convention System should be enabled to accommodate all acts in the CFSP area and the question was to find the appropriate way to get there (Meeting Report, Item 10, 39). Nevertheless, the issue was not discussed in the 7th negotiation meeting and the Group decided to come back to it in its 8th meeting (February 2021). However, accommodating all acts in the CFSP – as the 2013 draft Agreement did – does not seem to be in line with the objection raised by the CJEU.
Since no solution to overcome the objection of the CJEU in respect of judicial control in CFSP matters has been achieved within the recent 6th and 7th negotiation meetings so far, some concrete suggestions regarding the future of the judicial adjudication on CFSP matters within the system of the ECHR and the text of the draft Agreement may be put forward, taking in consideration the final wording of the general clause of Article 1, 4 of the draft Accession Agreement (see section 3.B.1).
4. Redrafting the accession agreement: Some concrete proposals
The requirements of a European Union based on the rule of law certainly recommend a full jurisdiction (and control) of the CFSP at EU level under three perspectives: the control of the EU acts and omissions which today are still excluded from the competence of the CJEU; the control of Member State infringements when implementing CFSP; and the guarantee of the final interpretation of all EU (primary and secondary) law in the area of CFSP by the CJEU. This would overcome the objections raised in Opinion 2/13 but requires a procedure of ordinary revision of the founding treaties (Article 48, 2 to 5 TEU).
Therefore, as long as such revision of the treaties does not occur, the main question is how to redraft the text of the agreement so that the attribution of jurisdiction to the ECtHR in CFSP matters respects the objections of the CJEU.
Two previous points must be made clear. First, regardless of the EU accession to the ECHR (or the responsibility of the EU as a co-respondent), the ECtHR may already rule on violations of the ECHR by EU Member States when they apply or execute EU law in the field of CFSP, including EU CFSP decisions – even if the EU judicature cannot rule on Member States infringements in respect of CFSP through an action for infringement. Second, as a consequence, the most problematic issue relates to either EU acts or omissions in CFSP matters or EU acts or omissions, including when it may be responsible as a co-respondent (Article 3 of the draft Agreement and Article 36, 4 of the ECHR) – which the EU judicature at present cannot review and/or interpret.
Having this in mind, three main possibilities – and correlative proposals for the redrafting of the draft Agreement – can be envisaged to overcome the objection of the CJEU. In fact, if according to Opinion 2/13 the ECtHR cannot rule exclusively on CFSP matters while assessing violations of the ECHR, either the CJEU has jurisdiction and the ECtHR can also rule or the CJEU has no jurisdiction and nor can the ECtHR have.
One upstream way to overcome the objection of the CJEU – and achieve the alignment of the jurisdiction of the ECtHR with the (current) scope of ratione materiae jurisdiction of the CJEU in CFSP matters, in order to ensure the specific nature of EU judicial legal order and EU autonomy – would be to allow a EU reservation to the Agreement on the accession of the EU to the ECHR, concretely to its Article 3. Since the current draft wording of Article 11 of the draft Agreement does not allow reservations to be made in respect of its provisions, a modification of that article would be needed to allow such EU reservation. The terms of that reservation could be the following: ‘The provisions of Article 3, (2), (3), (4), (5) and (6) of the Agreement will only apply in the cases in which the CJEU has jurisdiction in CFSP matters according to the TEU and the TFEU, as interpreted by its case-law. In proceedings foreseen in Article 3, 6 of the Agreement of Accession, if the CJEU finds that it is has no jurisdiction according to EU law to assess the compatibility of the EU law with the rights at issue foreseen in the ECHR, the proceedings against the EU, including as a co-respondent, will be terminated.’ A correlative reservation to Article 36, 4 of the ECHR, as added by the Agreement of Accession, could be made. This option would allow the jurisdiction of the CJEU in the area of CFSP to evolve, according to its case law, but its main inconvenient would be to exclude from the system of the ECHR part, eventually significant, of the activity of the EU itself in CFSP matters, meaning a gap in the protection of the rights enshrined in the ECHR – that some States that are parties to the ECHR may find difficult to accept according to the principle of ‘equal footing’ between States parties to the ECHR and the EU.
If the option of a reservation is not possible due to the lack of political will or other reason, a second possibility may be envisaged: to define the exact extent of the ECtHR jurisdiction in CFSP matters in respect of the EU acts, measures or omissions, directly in the wording of the Agreement on the Accession, either in the attribution clause of Article 1 – as it seems to have been suggested in the 6th negotiation meeting – or in the co-respondent mechanism clause of Article 3, 6.
In the first alternative (redrafting the attribution clause), the current wording of Article 1 of the draft Agreement should be modified in order to accommodate the objection of the CJEU and could be changed by addition of a new paragraph 5 as follows: ‘The attribution of an act, measure or omission to the EU, including as a co-respondent, when it implements CFSP and adopts decisions under the TEU or the TFEU in CFSP matters, will only take place insofar as the CJEU has jurisdiction to interpret and/or review EU law and decisions in the field of CFSP’. Alternatively, a new sentence could be added to Article 1, 4, second paragraph: ‘– except when such act, measure of omission regards the law of the EU in CFSP matters, including decisions taken under the TEU in CFSP matters and the CJEU has no jurisdiction to interpret or review such law and decisions’.
In the second alternative (redrafting the co-respondent clause), the current wording of Article 3 of the draft Agreement (extensive perspective allowing full ECtHR jurisdiction in CFSP matters, regardless of the scope of the CJEU jurisdiction in the CFSP area of EU competences) should be modified in order to accommodate the objection of the CJEU (restrictive perspective, not allowing ECtHR jurisdiction when the CJEU has no jurisdiction in CFSP matters). The wording could be changed in the following triple way: i) to include a new paragraph according to which ‘In the cases foreseen in paragraphs 2 and 3, the EU may only be respondent or become co-respondent to the proceedings in respect of an alleged violation notified by the Court [ECtHR] in so far as the CJEU has jurisdiction either to interpret or to assert the compatibility with the rights at issue defined in the Convention or in the Protocols to which the EU has acceded of the provisions of EU law taken under the TEU or under the TFEU in CFSP matters.’; ii) to include a new paragraph according to which ‘When the EU is notified by the Court [ECtHR] of an alleged violation, the CJEU will rule whether in the case it has jurisdiction in respect of CFSM matters. If the CJEU finds that it has no jurisdiction, proceedings against the EU as a co-respondent shall not continue and will be terminated’; and iii) to include a new paragraph under which ‘The same mentioned procedure applies when the EU is the only respondent in proceedings before the ECtHR and the co-respondent mechanism does not apply.’ This option would allow the CJEU to assert, in each case, according to its evolving case law, its own jurisdiction in respect of CFSP – to which it is solely competent. And as wide as the CJEU jurisdiction is, just so wide would be the jurisdiction of the ECtHR, overcoming the objection of Opinion 2/13.
One third possibility, although raising some doubts, may be envisaged in order to indirectly allow the further expansion of the jurisdiction in CFSP matters: conferring jurisdiction on disputes between EU Member States that relate to the subject matter of the treaties – in casu CFSP related matters (such as interpretation or application of national acts or measures executing EU primary or secondary law in CFSP matters involving the participation of more than one Member State, or even interpretation of EU secondary law acts that Member States have to apply while executing CFSP) – by a special agreement under Article 273 TFEU, that is, a valid agreement under international law between EU Member States. The nearest examples – despite the evident differences – would be the Treaty on Stability, Coordination and Governance in the Economic and Monetary Union and the Treaty Establishing the European Stability Mechanism (ESM) of 2 of March 2012. 60 In particular, the latter attributes jurisdiction to the CJEU to rule on a dispute over a decision of the Board of Governors of the ESM on any dispute arising not only between ESM Member States but also between an ESM Member and the ESM itself – which, according to Article 1, 1, legally is an (autonomous) international financial institution, not an EU Member State. Article 273 TFEU could therefore accommodate, to a certain extent, a conferral of jurisdiction to the CJEU in CFSP related matters – which would have the consequence of allowing the expansion of the competence of the ECtHR regarding violations of the ECHR within CFSP activities.
Finally, one more drastic possibility could be considered as ultima ratio, even though not satisfactory for Member States and with little added value regarding the current status: in CFSP matters, whenever the CJEU has no jurisdiction, violations of the ECHR for which the EU could be responsible (at least as co-respondent) would always be collectively attributable to EU Members States – either to all Member States or to those Member States acting on the EU behalf in a specific CFSP activity or EU mission. 61
4. Conclusion
The issue of the situation of EU acts in the area of CFSP that are excluded from the jurisdiction of the CJEU seems not to be an easy one to reach an agreement between all the parties to the ongoing (re)negotiation procedure of the draft Agreement, since the razor’s edge drawn by the CJEU in Opinion 2/13 is quite demanding and shows how the specific nature of the EU CFSP is somehow difficult to accommodate in the ECHR system – even if the EU already participates in other systems of international justice, such as those within the Montego Bay Convention or the World Trade Organization.
The previous text has therefore put forward some concrete (alternative) proposals to overcome the CJEU objections raised in Opinion 2/13 regarding the redraft of the Agreement on the Accession: the modification of Article 11 in order to allow a EU reservation related to the jurisdiction of the CJEU in CFSP matters; the definition of the exact extent of the ECtHR jurisdiction in CFSP matters in respect of the EU acts, measures or omissions, directly in the wording of the Agreement on the Accession, either in the attribution clause of Article 1 or in the co-respondent mechanism clause of Article 3, 6; and the attribution of violations of the ECHR for which the EU could be responsible, including as co-responsible, collectively to all or some EU Member States acting on behalf of the EU in a specific CFSP activity or EU mission. A last possibility was also put forward: a conferral of jurisdiction to the CJEU by an agreement under international law between EU Member States in respect of disputes between them in CFSP related matters in order to expand the jurisdiction of the CJEU in CFSP related matters and correlatively the jurisdiction of the ECtHR.
Even if the gap in the jurisdiction of the CJEU in CFSP matters has been attenuated by its evolving case law, thus allowing the intervention of the ECtHR, and even if all EU Member States acts, measures or omission, regardless of the EU area of competences, are already (and fully) subjected to judicial review by the ECtHR, the remaining (narrower) gap of judicial review in CFSP by the CJEU still remains, which – to ensure respect for Opinion 2/13 – cannot for the time being be filled as such by the judicial review of the ECtHR in respect of CFSP matters and can only be fully overcome through a revision of the EU founding treaties.
