Insight: “On the powers of the EU and its Member States for the ratification of mixed human rights agreements: the Court of Justice’s pending Opinion in Convention d’Istanbul” by Dolores Utrilla
Last week, on 6 October 2020, the Court of Justice held a hearing in Convention d’Istanbul (Opinion 1/19), which stems from the European Parliament’s request for an Opinion pursuant to Article 218(11) TFEU regarding the appropriate legal basis for the EU’s signature and conclusion of the Istanbul Convention.
This is a high-profile procedure in which the Court of Justice has been called on to clarify, in essence, the distribution of powers between the EU and its Member States as regards the conclusion of mixed agreements by the EU with third countries (or international organisations) with the purpose to prevent violence, protect victims and punish perpetrators, when such agreements include certain provisions on asylum and on the internal national justice systems.
More specifically, the case stems from the diverging views of the Commission and the Parliament, on the one hand, and of the Council of the EU, on the other, as regards the appropriate legal basis for, and therefore the scope of, the EU’s accession to the Istanbul Convention after its signature, as well as the role of Member States in such accession (and, more precisely, the need for them to reach a common accord). The legal intricacies inherent in this case warrant a consideration of the Convention’s content and scope (infra 1), as well as of the background and design of the accession procedure (infra 2), in order to understand the issues posed to the Court of Justice (infra 3 and 4).
1. The Istanbul Convention
The Convention on preventing and combating violence against women and domestic violence (Istanbul Convention) was adopted under the auspices of the Council of Europe (CoE) on 7 April 2011 and it came into force on 1 August 2014. In the absence of comprehensive EU rules on the matter, it provides the first European framework of legally binding standards specifically aimed at preventing gender-based violence, protecting victims of violence, and punishing perpetrators.
The Convention, which embraces a concept of ‘gender’ not based on the sex of the persons, but on their socially constructed roles, relates to matters involving both Member States’ and EU competences. From the EU perspective, it touches upon issues covered by the EU acquis in the area of procedural criminal law (Articles 82 and 84 TFEU), and, to a more limited extent, in the area of migration and asylum (Articles 78 and 79 TFEU).
Overall, the Convention covers a broad range of measures, including obligations concerning awareness-raising, data collection, and legal measures criminalising different forms of violence. The Convention sets out a two-pillar monitoring mechanism (through an independent body, GREVIO, and a Committee of the Parties which follows up on GREVIO reports and issues recommendations to the parties concerned) and two types of monitoring procedures (a country-by-country evaluation procedure and a special urgent inquiry procedure).
The Istanbul Convention also addresses the cross-border dimension of gender-based violence. In this regard, it contains certain provisions related to asylum and immigration, in particular imposing on State Parties the obligation to recognise gender-based violence as a form of persecution when establishing refugee status. It also requires States Parties to extend their jurisdiction to cover crimes committed abroad by their nationals.
As of 9 October 2020, all EU Member States have signed the Convention. However, six of them have not yet ratified it (Bulgaria, the Czech Republic, Hungary, Latvia, Lithuania, and Slovakia), and Poland announced its intention to withdraw from it earlier this year. Many of the EU Member States where the Convention is already in force made reservations or declarations concerning part of its provisions (Croatia, Cyprus, Czech Republic, Denmark, Finland, France, Germany, Greece, Ireland, Malta, Netherlands, Poland, Romania, Slovenia, Spain, and Sweden).
2. The EU’s accession to the Convention
The Convention provides for the EU’s accession, to the extent of its competences (Article 75). It also foresees that the EU may, at the time of signature or when depositing its instrument of ratification, acceptance, approval or accession, specify the territory or territories to which the Convention shall apply (Article 77(1)).
Both the European Parliament and the Commission have consistently fostered the EU’s accession to the Istanbul Convention. The Parliament called on the Commission to launch the accession procedure by its Resolution of 25 February 2014 on combating violence against women, and reiterated this call by its Resolution of 9 June 2015 on the EU Strategy for equality between women and men post 2015, where it also requested the Commission to promote the signing and ratification of the Convention by the Member States and to work actively to combat violence against women and girls.
In October 2015, the Commission issued a roadmap for EU accession to the Istanbul Convention. This was followed in 2016 by two proposals for Council decisions, one on the signature and other on the conclusion of the Convention on behalf of the EU. In both cases, the Commission suggested basing the corresponding Council decisions on the competences of the EU under Title V TFEU (area of freedom, security, and justice, AFSJ) and in particular on Article 82(2) and Article 84 thereof.
Through a Resolution of 14 March 2017, the European Parliament expressed its support for a broad EU accession without any limitations, welcoming the Commission’s proposals from March 2016 and calling on the Council and the Commission to speed up negotiations on signing and concluding the Convention.
Soon afterwards, in May 2017, the Council adopted two signature decisions based on legal bases different from the ones proposed by the Commission: one decision based on Articles 82(2) and 83(1) TFEU covering the provisions of the Istanbul Convention concerning cooperation in criminal matters, and another decision based on Article 78(2) TFEU covering the Convention’s provisions concerning asylum and non-refoulement.
The Convention was signed by the EU shortly afterwards, on 13 June 2017, but has not yet been ratified. In order for the EU to formally accede to the Convention, it is necessary that the Council adopts a decision having obtained the consent of the European Parliament.
Pending the Council’s formal request for that consent, the Parliament adopted an interim Resolution on 12 September 2017 on the accession procedure, expressing its concern regarding the limitation of the Council’s decisions to two areas – judicial cooperation in criminal matters and asylum and non-refoulement – as it considered that it raises legal uncertainties as to the scope of the EU’s accession, as well as regarding implementation of the Convention. Subsequently, by Resolution of 4 April 2019 the (newly elected) Parliament decided to request an Opinion from the Court of Justice concerning the compatibility of the accession proposals and procedure with the Treaties, focusing on (i) the issue of the legal basis and the possibility to split the accession decision into two legal acts, and (ii) the practice of a ‘common accord’ by the Council in its decision-making, which is applied in addition to or alternatively to the relevant decision-making procedure in the Treaties. Later on, in its Resolution of 28 November 2019, the Parliament asked the Council to conclude the procedure urgently, on the basis of a broad accession without any limitations, and condemned the attempts in some Member States to revoke measures already taken in implementing the Istanbul Convention.
3. The issue of the legal basis
The European Parliament requested an answer from the Court of Justice to the following question:
‘Do Articles 82(2) and 84 TFEU constitute appropriate legal bases for the act of the Council relating to the conclusion, in the name of the EU, of the Istanbul Convention, or must that act be based on Articles 78(2), 82(2) and 83(1) TFEU, and is it necessary or possible to separate the decisions concerning the signature and the conclusion of the convention as a consequence of that choice of legal basis?’
It is undisputed that the Istanbul Convention covers matters falling under EU and Member States’ competence (which in turn means that the EU should become a party to the Convention alongside the EU countries so that, together, they can effectively fulfil every obligation it sets out). It is also uncontested that Article 82(2) TFEU is an appropriate, though insufficient, legal basis for the accession. This provision brings mutual recognition of judicial decisions and cooperation in criminal matters, in general terms, within the scope of the EU’s competence, and gives the European Parliament and the Council general regulatory powers on this matter.
The discussion therefore concerns whether the Council should rely on, as additional legal bases, Article 84 TFEU (as suggested by the Commission and the Parliament) or Articles 78(2) and 83(1) TFEU (as decided by the Council). Clarification of this point is key because the first option involves a broad accession to the Convention, while the second implies a quite limited one, affecting mainly the provisions regarding asylum & migration (Articles 60 and 61 of the Istanbul Convention) and the internal criminal justice systems (the Convention’s provisions on judicial cooperation in criminal matters).
3.2. The broad interpretation of the Commission and the Parliament
According to the Commission and the Parliament, the centre of gravity of the Istanbul Convention relates to the prevention of crime and to the victims’ rights, and therefore accession should be based on Article 84 TFEU (in addition to Article 82(2) TFEU). This provision deals with the preventive side of the security’ dimension of the common area of freedom, security and justice, establishing the general competence of the EU for adopting measures in the field of crime prevention, harmonisation measures excluded.
This would enable the EU to exercise its competences over the entirety of the Convention and to exclude elements over which it has no competence. In this regard, last week’s hearing at the Court of Justice made clear that the Commission and the Parliament consider that the provisions of the Convention on other matters – and, in particular, those regarding asylum and internal criminal justice systems – are ancillary or incidental to the measures that constitute the focus of the Convention, and that they therefore should not determine the choice of the legal basis.
As stated in the Commission’s roadmap for the EU’s accession to the Istanbul Convention, ratification to the full extent of the EU’s competences ‘would put the EU in a strong position as regards monitoring of enforcement of the Convention also beyond the EU and would send a firm political message’. It would further, as a side-effect, ‘promote cooperation among Member States for the purposes of combating violence against women, also in view of the cross-border dimension of the issue’, and would thus be ‘of added value’.
3.3. The narrow interpretation of the Council
Departing from the Commission’s proposals, the Council considered that EU accession to the Convention should be limited to two specific areas of law in which the EU has competence, and it therefore chose as legal bases, in addition to Article 82(2) TFEU, Article 78(2) TFEU (on border checks, asylum and immigration) and Article 83(1) TFEU (on the fight against cross-border crime), issuing two separate decisions as a consequence.
This involves limiting the EU’s powers to conclude the Convention, which would therefore be ratified by the EU only as regards very specific parts of its content. Moreover, both Article 78(2) and 83(1) belong to the AFSJ part of the TFEU, and they therefore allow for measures with a narrower territorial scope than outside the AFSJ context.
4. The issue of Member States’ unanimous consent
In addition to the legal basis issue, the European Parliament’s request for an Opinion contains a second question, regarding the need for a common agreement among the Member States as a prerequisite to concluding international agreements:
Is the conclusion by the EU, in accordance with Article 218(6) TFEU, compatible with the Treaties in the absence of mutual agreement between all the Member States concerning their consent to be bound by that convention?’
This question is of clear practical relevance because, as noted above, not all Member States have ratified the Convention, many of them have made reservations to it, and Poland is considering withdrawal therefrom. The apparent lack of mutual agreement between all the Member States is relevant from three perspectives, namely the procedure for EU’s accession (infra 4.2), the potential responsibility of the EU under public international law for infringements arising from the lack of a common understanding between its Member States as regards the Convention (infra 4.3), and the scope of the duty of sincere cooperation in this regard (infra 4.4).
Furthermore, all these perspectives are of particular interest because so far they have been explored concerning mainly mixed agreements in the commercial policy context, while they remain unexplored when it comes to human rights conventions (an area in which the EU has only ratified one mixed agreement to date, the UN Convention on the Rights of Persons with Disabilities).
4.2. Accession procedure
The general procedure for negotiating, signing and ratifying international agreements is set out in Article 218 TFEU. According to Articles 218(6) and (8) TFEU, the decision regarding EU accession to an international agreement such as the Istanbul Convention is to be adopted by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament. Unanimity in the Council is required by Article 218(8) TFEU only for certain specific scenarios that do not come into play regarding the Istanbul Convention. In particular, the unanimity requirement under Article 218(8) TFEU does not seem applicable here because this provision reserves it mainly for agreements ‘covering a field for which unanimity is required for the adoption of a Union act’, and none of the legal bases chosen by the Council to accede to the Istanbul Convention refer to areas covered by the unanimity rule.
In spite of the wording of Article 218 TFEU, it must be taken into account that the practice of the Council when it comes to mixed agreements (international agreements covering areas of shared competence) is to take decisions by ‘common accord’ of all Member States. This was written in Article 133(6) of the Nice version of the EC Treaty for mixed trade agreements, a reference no longer present in Article 207 TFEU (the provision replacing it), as explained by Youri Devuyst here. Member States have nonetheless been keen on maintaining their veto right, also outside agreements regarding the common commercial policy.
The question of whether the Council can conclude a mixed international agreement under Article 218 TFEU in the form of a hybrid decision, by both the Council and the Representatives of the Governments of the Member States meeting within the Council, was already addressed by the Court of Justice in its Grand Chamber case Commission v Council (C-28/12). The Court of Justice’s ruling confirmed the Commission’s view that such hybrid form infringes Article 13(2) TEU, read in conjunction with Article 218 TFEU. According to the Court of Justice, it is apparent from the latter that the Council alone is designated as the institution with the power to authorise the signing of an international agreement by the EU. The Council cannot unilaterally derogate from the procedure set out in Article 218 TFEU – not even based on the duty of sincere cooperation – by involving the Member States in the adoption of that decision.
4.3. The EU’s international responsibility for infringements of international agreements
A second issue concerns the convenience of the EU’s accession to the Istanbul Convention without a previous common agreement among all Member States, taking into account the scenario of legal uncertainty that this may cause. In this regard, in last week’s hearing before the Court of Justice, the representatives of several Member States raised the issue of a potential future infringement by the EU of Article 27 of the Vienna Convention on the Law of Treaties, according to which a party may not invoke the provisions of its domestic law as justification for its failure to perform a treaty.
As explained here by Guillaume Van Der Loo and Ramses A. Wessel, after ratification by the EU and some (but not all) Member States, ‘incomplete’ mixed agreements do fully enter into force (covering both the EU and Member State’s competences of the agreement) only in the territory of the ratifying Member States, while Member States that did not ratify the agreement (or which withdrew from it) would only be bound by the areas of the agreement falling within the competences of the EU pursuant to Article 216(2) TFEU. The legal uncertainty argument is right to the extent that it is usually not clear which provisions of mixed agreements fall within the EU’s competence and which ones are covered by the Member State’s powers. To accommodate these concerns, a practice has been developed by the EU to adopt declarations of competence when concluding multilateral mixed agreements, aiming to clarify the scope of the competence and responsibility of the EU and the Member States over specific provisions or chapters of the agreement. From this perspective, one wonders whether the envisaged difficulties to reach a common agreement between all Member States are connected with the Council’s decision to ratify the Convention, relying on Articles 78(2) and 83(1) TFEU as the legal bases.
4.4. Sincere cooperation
Lastly, an interesting question here is whether and how the duty of sincere cooperation in Article 4(3) TEU would come into play in the context of the EU’s accession to the Convention and of the subsequent implementation thereof. This is of particular interest if the Court of Justice is to confirm its Commission v Council case law, so that accession may take place in the absence of a common accord between all Member States.
In this regard, it should be recalled that the Court of Justice’s interpretation on the content and scope of the duty of cooperation has been very much dependent on the context and circumstances of each individual case. However, two tentative conclusions can be made in this context. Firstly, it is apparent that the duty of sincere cooperation cannot be stretched so as to oblige Member States to ratify a mixed agreement, because such an extension would violate the free and voluntary nature of the ‘consent to be bound’ under Article 51 of the Vienna Convention. Secondly, it seems clear that Article 4(3) TEU obliges Member States to refrain from actions that call into question the EU’s capacity for independent action in its external relations. The Court of Justice has held on various occasions that, where the subject of an agreement falls partly within the competence of the EU and partly within that of its Member States, it is essential to ensure close cooperation between the Member States and the EU institutions, both in the process of negotiation and conclusion and in the fulfilment of the commitments entered into. The clearest example of this requirement, stemming from the need to ensure the EU’s unity in international representation, might be from the Court of Justice, concerning the EU’s competence to conclude the Uruguay Round which created the World Trade Organization (WTO) as regards trade in services and trade-related aspects of intellectual property protection (Opinion 1/94). Further examples of this reasoning can be found in the Court of Justice’s Opinion regarding the Cartagena Protocol (Opinion 2/00) and in the judgments in Commission v Sweden (C-246/07) and Commission v Council (C-28/12).
Dolores Utrilla is an Associate Professor at the University of Castilla-La Mancha and an Assistant Editor at EU Law Live.