The legally binding Charter and the EU’s accession to the ECHR - Consequences of Art 6 TEU for the autonomy of EU law and fundamental rights protection within Europe

Sammanfattning: This thesis analyses and discusses some of the substantial changes brought about for the field of fundamental rights by virtue of the entry into force of the Lisbon Treaty 1 December 2009; Art. 6(1) to the Treaty on European Union (TEU), according to which the Charter of Fundamental Rights of the European Union (CFREU) “shall have the same legal value as the Treaties” and Art. 6(2) TEU according to which “The Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms.” (ECHR) The focus of this thesis is the effects of these changes for the level of protection of fundamental rights within Europe and the autonomy of the EU legal order. In order to estimate how the level of protection of fundamental rights and the autonomy of EU law have been affected by the Charter’s legal status, it is necessary to analyse the general provisions governing the interpretation and application of the Charter (Art. 51-53 CFREU). The Court of Justice of the European Union (CJEU) has in the recent cases Melloni, Åkerberg Fransson and Toshiba Corporation to a certain extent clarified Art. 51-53 CFREU. It appears that the CJEU has interpreted Art. 51 on the Charter’s field of application extensively. By contrast, it has interpreted Art. 52(3) on the relationship between the Charter and the ECHR a partially autonomously in relation to the principle of ne bis in idem. It is unclear how to interpret Art. 53 CFREU but it is certain that it does not allow any deviation from the principle of supremacy. In my view, the CJEU should not have interpreted Art. 51 as extensively as it did in Åkerberg Fransson because of the quite clear phrasing of the provision - that the Charter shall only apply when Member States are implementing EU law. As far as I am concerned, it was reasonable of the Court to choose a partially autonomous interpretation of Art. 52(3) and not interfere with the non-consensus among the Member States in relation to the ne bis in idem principle as enshrined in ECHR, as it would involve the risk of rendering the Charter dependent on an international agreement. It is unsurprising that the CJEU did not accept an interpretation of Art. 53 that allows deviation from the principle of supremacy of EU law over national law. In my view, this approach is justified, as disturbance of this well-established principle would endanger the autonomy of EU law and prevent it from applying uniformly throughout the Union. In my opinion, the fact that the Charter has become legally binding enhances the level of protection of fundamental rights in Europe. By review of the Charter’s content, it is clear that it draws upon various fundamental rights instruments and contains several rights that are not enshrined in the ECHR. The negotiation process on the EU’s accession to the ECHR started in March 2010 and the last Draft agreement from June 2011 was finalized in April 2013. The task of integrating the two judiciaries has been difficult. The fact that an external court will be able to review EU measures causes issues for the autonomy of the EU legal order. For this reason, Protocol No. 8 relating to Art. 6(2) requires that the Draft agreement “shall make provision for preserving the specific characteristics of the Union and Union law”. By review of the case law and opinions of the CJEU, it appears that the “specific characteristics” relates to the autonomy of EU law. Moreover, this protocol stipulates that nothing in the Draft agreement shall affect Art. 344 to the Treaty on on the Functioning of the European Union (TFEU), according to which national courts are prevented from submitting any case concerning EU law to an external court. The requirement relating to Art. 344 TFEU addresses the need to preserve to the key functions and the autonomy of the CJEU. The final version of the Draft agreement contains a number of mechanisms that seek to strike the balance between preserving the specific characteristics of EU and EU law without compromising the autonomy of the European Court of Human Rights (ECtHR) or the level of protection of fundamental rights. The prior involvement mechanism allows the ECtHR to ask the CJEU for a preliminary ruling in so far an alleged violation of the ECHR concerns EU law. The co-respondent mechanism allows the EU and its Member State(s) to be co-respondents in proceedings where a EU institution has adopted a EU measure, that a Member State has implemented, which is alleged of violating ECHR. The provision on Inter-Party complaints will amend the current provision on Inter-State complaints in Art. 33 ECHR to include the EU and its Member State(s). I am of the opinion that these mechanisms together strike the desired balance of preserving the autonomy of EU law, the CJEU’s and the ECtHR’s key functions. For instance, the prior involvement mechanism preserves an essential feature of EU law. The mechanism appears to mirror the preliminary ruling procedure, according to which Member States can refer cases to the CJEU insofar they contain EU law, which preserves the CJEU’s function of being the only court that can declare EU measures to be invalid. The mechanisms have also managed to place the EU on equal footing with the other Contracting Parties. For example, they have included the EU and its Member State in proceedings under Art. 33 ECHR. The co-respondent mechanism is an appropriate solution on how to integrate the EU in proceedings where an alleged violation of the ECHR has its origin in EU law. It allows the issuing institution, as well as the implementing Member State, to be co-respondents to the proceedings. It succeeds in doing so without requiring the ECtHR to interpret EU law in a binding manner, decide the Member States obligations under EU law or decide where the alleged violation took place. To conclude, accession of the EU to the ECHR will preserve the autonomy of EU law as well as the central functions of the CJEU and the ECtHR, because of these mechanisms and because of the fact that the ECtHR is of subsidiary character. Moreover, accession will lead to an enhancement of the level of protection of fundamental rights within Europe as two obvious judicial gaps will be closed; henceforth the ECtHR will be able to scrutinize EU cats and hold the EU responsible for violations of the ECHR.