In its December 2014 opinion, the Court of Justice of the European Union rejected the draft accession agreement that would have enabled the European Union to accede to the Convention for the Protection of Human Rights and Fundamental Freedoms on the grounds of its incompatibility with the EU’s constitutional structure. This article argues that the Luxembourg court’s reasoning exemplifies a problematic attitude of ‘European exceptionalism’ that has deep roots within the philosophy of the European integration project. According to this narrative, the enlightened character of supranational institutions exempts them from the normative constraints designed to check more imperfect forms of political organization such as nation states. The article argues that this conviction is not only ill-founded but also provides another reason why the EU, just like the sovereign states it has been set up to constrain, needs external human rights scrutiny.
Can a constitution command the impossible? In view of the recent Opinion rendered by the Court of Justice of the European Union (CJEU) on the European Union’s accession to the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), this is what the Treaty on European Union (TEU) comes close to doing. As amended by the Lisbon Treaty, Art 6(2) TEU proclaims that ‘the Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms.’ Protocol No. 8 to the Treaty, however, insists that the EU’s accession to the ECHR must preserve ‘the specific characteristics of the Union and Union law,’ the competences of the Union, and the relationship between EU Member States and the ECHR. Taken together, these conditions leave the EU with a very narrow path to accession, particularly considering the extent to which Convention membership has modified the constitutional orders of many signatory states. The draft agreement on the EU’s accession to the ECHR, painstakingly negotiated over three years between the Commission and the ECHR’s Steering Committee on Human Rights, attempted to tread that narrow path. However, with its adverse opinion on the agreement (Opinion 2/13), delivered in December 2014, the Court of Justice of the European Union has found several aspects of the agreement to be incompatible with the Protocol No.8 requirements. In doing so, it has reinvigorated scholars and practitioners who have long criticized the Court’s aggressive defense of its own jurisdictional domain. To these observers, the Court stands guard at the gates of the EU legal order, Cerberus-like, one head fending off national constitutional courts, the other keeping international organizations like the UN and WTO at bay, and now, a third glowering at the European Court of Human Rights.
This article identifies a potentially more pernicious attitude behind the Court’s unforgiving treatment of the accession agreement, namely an overconfident belief that the EU, under the Court’s own stewardship, has risen above the political and institutional defects that typically generate human rights infringements. This posture, which I will term ‘European exceptionalism,’ has deep roots within the philosophy of European integration. Accordingly, commitments to reason, universalism, and respect for law are immanent within the structure of supranational governance, and constitute a sufficient safeguard against fundamental rights violations. Designed to hold in check the parochial and exclusionary tendencies of nation-states, supranational institutions have no need of similar checks on their power. I will argue that this conviction is ill-founded and provides another reason why the EU, just like the sovereign states it has been set up to constrain, needs an external source of human rights supervision.