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Attribution of Liability Under the Co-respondent Mechanism

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The EU Accession to the ECHR

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Abstract

This chapter offers an analysis of the individual complaint mechanism in EU-related cases, with a specific view to the recently innovated co-respondent mechanism. The latter being a core but also the most essential device to ensure the autonomy of EU law, and to functionalize the multifaceted nature of EU–Member States relation before the Convention system. The chapter responds to the research sub-question: ‘How may the distribution of burden for ECHR violations be shared between the EU and Member States under the co-respondent mechanism, and where do loopholes remain?’ Essentially, this chapter engages with the model of liability sharing between the EU and Member States which the DAA installs within the context of EU Treaties’ prescriptions and foundational limitations.

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Notes

  1. 1.

    Orakhelashvili (2003), p. 529; See also: Odermatt (2014), p. 9.

  2. 2.

    See e.g.: van Dooren (2009), p. 50; See also: Greer and Williams (2009), p. 463, where the question remains: ‘is the trans-national protection of human rights in Europe a matter of ‘individual’, ‘constitutional’ or ‘institutional’ justice?’. This being the doubt, some do argue that the Convention is not nevertheless very appropriate for very ‘individual’ human rights protection; See also: Sweet (2009), p. 624/5.

  3. 3.

    From a historical perspective, the individual complaint mechanism foreseen by the Convention was a rather significant development in terms of human rights protection at the time when it was initiated, adding that in that period there was no view beyond the inter-state mechanism in terms of international human rights treaties. See: Kerson (1961), p. 177; See also: Sera (1996), p. 154/5.

  4. 4.

    For instance, with respect to Article 2 ECHR the Court held that High Contracting Parties are bound to take appropriate steps to ensure the right to life of those within their jurisdiction. See: ECtHR, LCB v UK, Application no. 14/1997/798/1001, Judgment, Strasbourg, 9 June 1998, para. 36; With regard to the Convention as a core international example of international human rights law protection, see: Shelton (2003), p. 123.

  5. 5.

    Higgins (2003), p. 1; See more on the need for coherence of human rights, with accession being a core moment: Joris and Vandenberghe (2008–2009), p. 12.

  6. 6.

    Olsen (2009–2010), p. 56; See also: Harding (2000), p. 142, who speaks on the influence of ECHR system on the legal products of the Luxembourg Court.

  7. 7.

    ECtHR, Confédération Française Démocratique du Travail (CFDT) v European Communities [1979]; Accession will allow individuals to request individual responsibility of the EU before the Strasbourg Court. See on this e.g.: Phelps (2006), p. 278/9.

  8. 8.

    de Búrca (2005), p. 95.

  9. 9.

    Literature on the accession of the EU to the ECHR and the possible implications for individual judicial review in Strasbourg has grown in recent years: See e.g.: Lock (2010), p. 777; Jacque (2011), p. 995–1023; Lock (2011), p. 1025–1054, etc;

  10. 10.

    A normal feature of the increasing legal pluralism being crafted with the latest developments in Europe. See: van Rossem (2009), p. 206.

  11. 11.

    Cf.: Ryngaert (2011), p. 1005, who argues that in Gasparini case the Strasbourg Court nevertheless ruled that it may call Member States responsible if the international organization to which they are members has a ‘structural lacuna’ of human rights protection. Based on the Gasparini approach, one may argue that the Strasbourg Court has not fully omitted from finding Member States responsible for their membership in IOs, if the latter have ‘structural lacuna’ somewhere in their framework (including secondary law of EU, one may say). This needs be compared to the DARIO’s standards applied upon the EU scenario.

  12. 12.

    Some dispute its need and argue that it will prove very complex for usage: Conforti (2010), p. 85.

  13. 13.

    den Heijer (2013), p. 438.

  14. 14.

    Sarvarian (2014), p. 102.

  15. 15.

    Cf.: Lenaerts and de Smijter (2001), p. 96 (‘Not only does such divergence entail a dilemma for the national judiciary bound as it is by two distinct forms of legal loyalty, it also increases the risk of liability of the EU Member States for violations of the ECHR committed by the institutions of the Union.’).

  16. 16.

    It is interesting to mention the fact that the EU Treaties oblige the EU and its Member States to build a level of consistency in their external action policy. This level of consistency—seen from an international liability viewpoint—somehow favors models of mutual responsibility for EU and its Member States when it comes to violations consumed by the EU and its Member States in their external relations. On the former note, see e.g.: Wessel (2000), p. 1135–1171.

  17. 17.

    Barents (2009), p. 429.

  18. 18.

    Jacobs (2007), p. 13.

  19. 19.

    On the autonomy of the EU legal order: See: Court of Justice of EU, Opinion 1/91 [1991] ECR I-6079, para. 35; Court of Justice of EU, Opinion 1/00 [2002] I-3493, paras. 11–13; Court of Justice of EU, Case C-450/03, Commission of the European Communities v Ireland (MOX Plant), [2006] ECR I-04635, paras. 123–124; Court of Justice of EU, Joined Cases C-402/05 P and C-415/05 P, Yassin Abdullah Kadi and Al Barakaat International Foundation v Council of the European Union and Commission of the European Communities, [2008] ECR I-06351, para. 282; Court of Justice of EU, Opinion 1/09[2011] ECR I-1137, para. 67; See generally on this topic, at: Barents (2004).

  20. 20.

    Gragl points out that some of the Protocol 8 prohibitions are written to address the Member States’ concern that post accession the EU Court would possibly engage with a form of interpretation of the Convention that would take more competences from the Member States. See: Gragl (2013), p. 96.

  21. 21.

    To this end, in addition, Protocol 8(2) to the EU Treaties reads: ‘The agreement referred to in Article 1 shall ensure that accession of the Union shall not affect the competences of the Union or the powers of its institutions. It shall ensure that nothing therein affects the situation of Member States in relation to the European Convention, in particular in relation to the Protocols thereto, measures taken by Member States derogating from the European Convention in accordance with Article 15 thereof and reservations to the European Convention made by Member States in accordance with Article 57 thereof.’

  22. 22.

    See e.g.: Ribble (2010–2011), p. 225; Jacque (2011), p. 1011; White (2010), p. 442; See also: Gragl (2013), p. 91/2, who argues that the accession agreement should not only preserve the characteristics of the EU legal order but also entail as little as possible changes to the Convention system, in order for the latter to uphold its capacity to serve effective human rights protection; On such core characteristics of EU law, see the Luxembourg’s landmark opinion on ‘Draft Agreement on a European Common Aviation Area, Re(Opinion 1/00), op. cit. note 19.

  23. 23.

    See in this regard the indispensability of this characteristic of the EU law, at: Court of Justice of EU, Opinion 1/92 [1992] E.C.R. I-2825, para. 24, and, Court of Justice of EU, Commission v Ireland (C-459/03) [2006]; Ribble (2010–2011), p. 225 (‘This provision poses an interesting question: what will affect the power of EU institutions? Without an additional explanation, it is unclear whether an adverse ruling by the ECHR would inhibit an EU institution's power.’); See also: Odermatt (2014), p. 16; See also: Gragl (2013), p. 265, who rightly argues that ‘the negotiators emphasised that the special legal characteristics of the Union must be taken into account, but not at the price of impairing the Convention’s human rights protection system.’ One needs to argue that, however, negotiators of the DAA were not that well courageous to maintain this promise until the end, as the DAA demonstrates that there are certain loopholes which do affect negatively the protection system under the Convention post-accession.

  24. 24.

    However, one must also mention that in light of international law the EU may not use Protocol 8 afterwards (post-accession) to denounce its obligations undertaken with the DAA, although DAA may perhaps seem later on as interfering to the limitations of Protocol 8. See in this regard: Art. 46.2 VCLTSIOIO, which reads: ‘An international organization may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of the rules of the organization regarding competence to conclude treaties as invalidating its consent unless that violation was manifest and concerned a rule of fundamental importance.’

  25. 25.

    This is written inter alia to mean that the Convention system may not interfere to the division of responsibilities between the EU and its Member States. The EU Court—in this regard—has ruled in Ruling 1/78 that it is not necessary to set out the division of powers between the EU and its Member States in an international agreement. However, it would be ‘sufficient to state to the other contracting parties that the matter gives rise to a division of powers within the Community, it being understood that the exact nature of that division is a domestic question in which third parties have no need to intervene.’ (Court of Justice of EU, Ruling 1/78 (on the Draft Convention of the International Atomic Energy Agency on the Physical Protection of Nuclear Materials, Facilities and Transports) [1978] ECR 2151, para. 35). The latter seems well embedded in the Protocol 8, however it is not something faultlessly guaranteed by the DAA.

  26. 26.

    See also: den Heijer (2013), p. 434.

  27. 27.

    ECtHR (European Court of Human Rights) (3d sect.), T.I. v. United Kingdom (Appl. No. 43844/98), decision (inadmissibility) of 7 March 2000, page. 15.

  28. 28.

    Such peculiarities mainly refer to standards deriving from Costa v ENEL [1964], Opinion 1/91 [1991] and Commission v Ireland (C-459/03) [2006], op. cit. note 19; See also on the ‘correct addressee’ debate during the negotiation process: Groussot et al. (2011), p. 7; Lock (2012), pp. 165 et seq; Eckes (2013), p. 267.

  29. 29.

    E.g.: Lock (2010), p. 780; See also: Gragl (2013), p. 147, who argues that the idea of making it simpler for the applicant to know how to proceed a certain violation to the Strasbourg Court through the entity that implemented it—rather than the one that legislated it—is more rational and the best possible choice. In addition, Gragl argues that this model saves better the autonomy of EU law as it does not engage the Strasbourg Court with the adjudication of the levels of responsibility within EU law that it would need to tackle if the co-respondent model would have not been selected.

  30. 30.

    Streinz (2013), p. 1.

  31. 31.

    See on this, e.g.: Streinz (2013), p. 1.

  32. 32.

    One must add here that there is an ongoing tension between the EU Court and Member States’ courts, the former trying sometimes to ‘grab’ portions of competences from Member States. A core example is case Secretary of State for the Home Department v. Akrich (Court of Justice of EU, Secretary of State for the Home Department v. Akrich, Case C-109/01, [2003] E.C.R. I-9607, para. 61), which shows a tendency of the ECJ to get into the domain of Member States’ law territory. This makes the overall picture of ‘who to call into responsibility’ (the EU or Member States) becomes even more problematic.

  33. 33.

    E.g.: den Heijer (2013), p. 434; Raba (2013), p. 564; Gaja (2013), p. 1; See also: Lock (2012), p. 175; Ribble (2010–2011), p. 221 (In terms of the complexity of this picture of legal borders, ‘[…]member states of the EU are in a precarious situation where they are bound to abide by both EU law and the Convention. It is possible, for example, that a state could implement an EU regulation and simultaneously violate the Convention.’); On the latter, see also: Wetzel (2003), p. 2825; This may lead to Member States needing to choose between violating the primacy of EU law or the Convention. See: Lenaerts and de Smijter (2001), p. 92.

  34. 34.

    Raba (2013), p. 564.

  35. 35.

    See e.g.: Art. 4 (1) ILC Articles on State Responsibility in this regard reads: ‘The conduct of any State organ shall be considered an act of that State under international law, whether the organ exercises legislative, executive, judicial or any other functions […].’; The same approach has been applied until now with regard to EU Member States’ responsibility for EU acts which allow no state discretion. See also: ECtHR, Bosphorus Hava Yollari Turizm ve Ticaret Anonim Şirketi v. Ireland, Application No. 45036/95 (Judgment of 30 June 2005), para. 153.

  36. 36.

    Bjoerklund (2001), p. 374.

  37. 37.

    Lock (2010), p. 784.

  38. 38.

    This was the case in e.g. Bosphorus Hava Yollari Turizm ve Ticaret Anonim Şirketi v. Ireland, Application No. 45036/95, op. cit. note 35; However, the Strasbourg court was reluctant to review the measure knowing that a Security Council Resolution was at stake. Moreover, the Court (ECtHR) argued that EU offers human rights protection equivalent to that of the ECHR (see para. 155); For an analysis of the doctrine of equivalent protection, see De Hert and Korenica (2012), p. 874–895. (In Bosphorus the EU Regulation was adopted relying on a UNSC Resolution; Republic of Ireland implemented the Regulation with no margin of discretion as to the alteration of the measure); Cf.: Conforti (2010), p. 85, who argues that the new mechanism must establish that there should be no responsibility for the Member State if it exercised no discretion.

  39. 39.

    Alter and Helfer (2010), p. 566.

  40. 40.

    ECtHR (GC), Ilascu and others v. Moldova and Russia, Appl. No. 48787/99, judgment of 8 July 2004, para. 311.

  41. 41.

    The traditional model of definition of jurisdiction was based on the notion of territory, with a single level of entity being responsible in face of the Convention system. Accord.: The Court had argued that it ‘must be considered to reflect this ordinary and essentially territorial notion of jurisdiction, other bases of jurisdiction being exceptional and requiring special justification in the particular circumstances of each case.’ (ECtHR, Bankovic v Belgium and others, Application no. 52207/99, Grand Chamber, Decision as to the Admissibility, para. 61); For a critique to the Strasbourg Court’s Bankovic approach—due to its vague nature on determining the notion of jurisdiction—see e.g.: Martin (2003), pp. 106–109.

  42. 42.

    See a similar example, at: Lavranos (2006), pp. 464 et seq; Cf.: Lock (2010), p. 780, where the author argues that the co-respondent mechanism should have been suitable for usage for one which has no legal education.

  43. 43.

    Cf.: European Parliament’s Committee on Constitutional Affairs (in May 2010) had proposed a different model for the ‘correct addressee’, by proposing this provision: ‘[A]ny application by a natural or legal person concerning an act or failure to act by an institution or body of the Union should be directed solely against the latter and that similarly any application concerning a measure by means of which a Member State implements the law of the Union should be directed solely against the Member State, without prejudice to the principle that, where there might be any doubt about the way in which responsibility is shared, an application may be brought simultaneously against the Union and the Member State.’ European Parliament Committee on Constitutional Affairs Resolution (May 2010) (P7_TA(2010)0184), para. 9.

  44. 44.

    E.g.: Quirico (2010), p. 50.

  45. 45.

    On the general trends of fragmentation of international law, wherein each treaty regime tries to build its own autonomous system of rules of interface with others, and the overall treaty-conflict resolution mechanisms, see two very interesting sources: Simma (1985), p. 111–136; and, ILC (2006). U.N. doc. A/CN.4/L.702 of 18 July 2006.

  46. 46.

    Tabarelli (2013), p. 342, citing Stone Sweet.

  47. 47.

    ECtHR (European Commission of Human Rights), Ilse Hess v. United Kingdom, Appl. No. 6231/73, Decision of 28 May 1975 on the admissibility of the application, p. 73/4.

  48. 48.

    ECtHR (European Commission of Human Rights), Ilse Hess v. United Kingdom, op. cit. note 47, p. 73/4.

  49. 49.

    See in this regard a wealthy contribution on the EU and its Member States under the ILC Articles on Responsibility of International Organizations, at: Kuijper and Paasivirta (2004), p. 111–138.

  50. 50.

    CDDH-UE (2011)16fin, para. 33 et seq.

  51. 51.

    See very generally, also: Rieder (2005), p. 102; Cf.: Lenaerts (2012), p. 377, on the responsibility on the application of the Charter of Fundamental Rights.

  52. 52.

    See also: Lock (2012), p. 174/5; and it includes all policy fields of EU, including CFSP. See on this, e.g.: Balfour (2007), p. 214; Compare to: Art. 6(1) of Annex 9 of UNCLOS (‘Parties which have competence under article 5 of this Annex [the part on the declaration of competence of each contracting party] shall have responsibility for failure to comply with obligations or for any other violation of this Convention.’); Clearly, the DAA establishes another model of clarifying the jurisdiction on basis of the legal acts which EU produces on basis of its own law, rather than on basis of a declaration of competence which the Convention system does not require neither for the EU nor for its Member States. The DAT seems more reliable in terms of claimants’ ability to know when EU is responsible for an alleged violation and when not.

  53. 53.

    den Heijer (2013), p. 433.

  54. 54.

    On the latter, see e.g. the EU Court’s reasoning in the Bosphorus case, at: Hoffmeister (2006), p. 446.

  55. 55.

    On the scope of Member States’ discretion on ‘implementing measures’ of the EU act, see: Nanopoulos (2013), p. 277/8 et seq.

  56. 56.

    Of course, this does not influence in any form the Member States’ human rights obligations on their exclusive competences. Cf.: Court of Justice of EU, Cinetheque S.A. and Others v. Federation Nationale des Cinemas Francais, Cases 60–61/84, 1985 E.C.R. 2627, para. 26, where the court ruled: ‘Although it is true that it is the duty of this Court to ensure observance of fundamental rights in the field of Community law, it has no power to examine the compatibility with the European Convention of national legislation which concerns, as in this case, an area which falls within the jurisdiction of the national legislator.’; See also: Court of Justice of EU, Demirel v. Stadt Schwdbisch Gmtnd, Case 12/86, [1987] E.C.R. 3719; Court of Justice of EU, Kremzow, Case C-299/95, [1997] ECR I-2629, para 15.

  57. 57.

    See e.g.: Raba (2013), p. 568; Cf.: Jacque (2011), p. 1005, arguing that the inclusion of CFSP actions under the accession will generate asymmetry between Luxembourg and Strasbourg courts, as the former has no treaty competence to review such measures whereas the latter is being given the chance to serve as a court of first instance on CFSP materie.

  58. 58.

    ECtHR (GC), Bankovic and others v. Belgium and 16 Other States (Appl. No. 52207/99), decision (inadmissibility) of 12 December 2001, para. 67 (‘the Court has accepted only in exceptional cases that acts of the Contracting States performed, or producing effects, outside their territories can constitute an exercise of jurisdiction by them within the meaning of Article 1 of the Convention.’); On Bankovic, see also: Gondek (2005), p. 356 et seq; Accord: Inter-American Commission of Human Rights, Coard v. United States, Report No 109/9 of 29 September 1999 (DC 215-6), para. 37 (‘While the extraterritorial application of the American Declaration has not been placed at issue by the parties, the Commission finds it pertinent to note that, under certain circumstances, the exercise of its jurisdiction over acts with an extraterritorial locus will not only be consistent with but required by the norms which pertain.’).

  59. 59.

    Gragl proposes that in order to overcome this potential interference to EU law autonomy, the Strasbourg Court should call them inadmissible and leave it to the Luxembourg Court to decide on those issues. See: Gragl (2013), p. 165. One should fully disagree here with Gragl, as it makes not sense to exclude EU’s accession to ECHR for the bulk of positive obligations the definition of which may need to put the Strasbourg Court to find out the competent and liable entity. It makes no sense to have the EU responsible under the Convention system only for actions and not for omissions. Their value is absolutely equal in terms of the persons enjoyment of rights under the Convention.

  60. 60.

    Hancox (2013), p. 1418; See a similar concept at: Lock (2012), p. 193; Von Bogdandy et al. (2012), p. 497.

  61. 61.

    E.g.: Muir (2014), p. 228; See also two cases of this kind: Court of Justice of EU, Wachauf v. Forstwirtschaft, Case 5/88, [1989] E.C.R. 2609; Court of Justice of EU, Tihelorassi v. Pliroforissis, Case C-260/89, [1991] E.C.R. 1-2925; To note, implementing measures of Member States are interpreted rather broadly by the EU Court, in order to ensure that fundamental rights are observed as broadly as possible from the perspective of MS actions. See an exemplary case to taste the latter argument, at: Court of Justice of EU, Kücükdeveci, Case C-555/07, [2010] ECR I-00365, paras. 23–26.

  62. 62.

    See e.g.: García (2002), p. 495; Gragl (2013), p. 55; On the prohibited derogation from EU law, see also: Franklin (2010–2011), p. 153.

  63. 63.

    See infra the chapter on exhaustion of EU law direct remedies.

  64. 64.

    Gragl rightly argues that these blurred borders between the EU and Member States’ responsibility may become even more problematic if Member States were recognized a certain margin of discretion when they implemented the alleged violation. See: Gragl (2013), p. 143.

  65. 65.

    Gragl (2013), p. 142.

  66. 66.

    Wetzel (2003), p. 2825.

  67. 67.

    Gragl in this regard argues that should the Strasbourg Court be given jurisdiction to rule on the apportioning of responsibility between the EU and its Member States that would violate Art. 1 of Protocol 8 which requests that the accession process preserve the characteristics of EU law. See: Gragl (2013), p. 144; Cf.: Gragl in this regard also mentions the suggestion of the EP’s Committee on Constitutional Affairs which had basically proposed that when there are doubts as to whether a certain violation is caused by the EU or the Member State(s), then the applicant direct the application concurrently to both of them. Gragl criticizes this model, with a valid argument, as that would have complicated even more the procedure before the Strasbourg Court, especially if one takes into account the fact that the rule on exhaustion should have been applied in both levels in that scenario. Gragl (2013), p. 148.

  68. 68.

    Lock (2010), p. 783; See also: Gragl (2013), p. 141–143; Accord: Raba (2013), p. 564, who argues that it is rather difficult for the applicant to define which level of legal order (EU v. Member States) caused the violation; On the latter, see also: Craig (2013), p. 1122.

  69. 69.

    d’Aspremont (2014), p. 84.

  70. 70.

    Lock (2010), p. 785.

  71. 71.

    On Germany’s proposal for merely a redesigned third party mechanism, see: Groussot et al. (2011), p. 7.

  72. 72.

    The procedure and nature of third party intervener is explained officially in the following manner: ‘The President of the Court may authorize any person other than the applicant, or another State Party to the Convention other than that against which the application has been lodged, to intervene in the proceedings. This is called third-party intervention. The person or State in question is entitled to file pleadings and take part in public hearings.’, at: The European Court of Human Rights (2014), p. 8; See also: Leach (2011), p. 16 et seq; Art. 36 (1 & 2) ECHR, regarding third party intervention procedure, reads: ‘1. In all cases before a Chamber or the Grand Chamber, a High Contracting Party one of whose nationals is an applicant shall have the right to submit written comments and to take part in hearings. 2. The President of the Court may, in the interest of the proper administration of justice, invite any High Contracting Party which is not a party to the proceedings or any person concerned who is not the applicant to submit written comments or take part in hearings.’

  73. 73.

    See e.g.: Chinkin (1986), pp. 495 et seq; See also: Statute of International Court of Justice, available at: http://www.icj-cij.org/documents/index.php?p1=4&p2=2&p3=0&#CHAPTER_III.

  74. 74.

    See e.g. the third party intervention in case: ECtHR, KAOS-GL v Turkey Application No. 4982/07; See also generally: Leach (2011), pp. 16 et seq.

  75. 75.

    Lock (2010), p. 785, as one finds it in the case of co-respondent.

  76. 76.

    E.g.: Groussot et al. (2011), p. 10; See also: Lock (2012), p. 167; See also: O’Meara (2011), p. 1821.

  77. 77.

    CDDH-UE (2011)16fin, paragraph 39; See also: Raba (2013), p. 565; Martín and De Nanclares (2013), p. 10/11; See also: Gragl (2013), p. 151.

  78. 78.

    Raba (2013), p. 565; Odermatt (2014), p. 24.

  79. 79.

    E.g.: Lock (2010), p. 785.

  80. 80.

    See e.g.: Gragl (2011), p. 71.

  81. 81.

    Art 36, para. 2 and 3 ECHR.

  82. 82.

    CDDH-UE (2011)16fin, para. 40.

  83. 83.

    See: Lock (2010), p. 782/3; See also: Eckes (2013), p. 267; Gragl notes that this mechanism was first introduced in 2002, in which case it was argued that the EU should be given the chance to defend itself before the Strasbourg Court if the alleged violation derives from EU law. See: Gragl (2013), p. 148/9.

  84. 84.

    CDDH-UE (2011)16fin, Art 3 (1)b; See also: Gaja (2013), p. 3 (‘The main purpose of the EU becoming a co-respondent is to allow the EU to enjoy all the rights of a party to the proceedings in order to defend what it considers to be the proper interpretation of the relevant provisions of EU law and of the ECHR.’).

  85. 85.

    Gragl in this regard notes that—referring to Lock—in the past there have been three options presented in the table as regards the manner in which the co-respondent mechanism may be triggered: first, by the request of the original respondent, second, by the request and decision of the Strasbourg Court, and, third, by the request of the co-respondent itself. See: Gragl (2013), p. 153. The current DAA foresees two possibilities: first, that the co-respondent request to join and the Court decide on it, and, second, that the Court invite the co-respondent to join.

  86. 86.

    O’Meara (2011), p. 1820; See also: Gragl (2013), p. 149.

  87. 87.

    Court of Justice of EU, Parliament v Council, Case C-316/91 [1994] ECR I-625, para. 29 [emphasis added]; See also on joint responsibility: Eeckhout (2004), p. 222/3.

  88. 88.

    As a comparative example, AG Tesauro affirmed in Hermès that ‘[i]n these circumstances, it should be recognised that the Member States and the Community constitute, vis-à-vis contracting nonmember States, a single contracting party or at least contracting parties bearing equal responsibility in the event of failure to implement the agreement’. [emphasis added]. (See: Court of Justice of EU, Hermès International v FHT Marketing Choice BV, Case C-53/96 [1998] ECR I-3603, para 14). It seems clear that basically AG Tesauro proposed a two-level incremental model of responsibility in Hermès, the first level being joint responsibility, which, if not accepted by the parties, then equal responsibility of the parties (Community and Member States) will be the principle applying in the second level—something which may not be departed any further. This option seems to have been totally excluded in the DAA.

  89. 89.

    Contra.: Opinion of the Advocate-General Mischo (Berne Convention for the Protection of Literary and Artistic Works), Commission v Ireland, Case C-13/00 [2001] ECR I-2943, para. 30 (‘the very fact that the Community and its Member States had recourse to the formula of a mixed agreement announces to non-member countries that that agreement does not fall wholly within the competence of the Community and that, consequently, the Community is, a priori, only assuming responsibility for those parts falling within its competence.’) [emphasis added]. It seems clear that AG Mischo promotes a shared responsibility model for the EU and its Member States, certainly such model would offer space for interference to EU law autonomy from Strasbourg’s side.

  90. 90.

    On the latter, see a general opinion at: Lock (2010), p. 784.

  91. 91.

    Gragl (2013), p. 150.

  92. 92.

    Lock (2012), p. 168.

  93. 93.

    CDDH-UE (2011)16fin, para. 45 et seq.

  94. 94.

    Generally established in Art. 4 and 5 TEU and Art. 2 to 4 TFEU.

  95. 95.

    Emphasis added.

  96. 96.

    See also the part of this chapter where three cases are tested with the co-respondent mechanism (Chap. 10).

  97. 97.

    The Strasbourg Court—when it comes to cases involving both the EU and its Member States—could easily follow the approach of the Inter-American Court of Human Rights, which in the Velasquez Rodrıguez v. Honduras ‘maintain[ed] that the issue of exhaustion of domestic remedies must be decided jointly with the merits of this case, rather than in the preliminary phase.’ (Inter-American Court of Human Rights, Velasquez Rodriguez Case, Preliminary Objections, Judgment of June 26, 1989, Inter-Am.Ct.H.R. (Ser. C) No. 1 (1994), para. 83). If this approach would have been followed, there would seem far less spaces for interfering to the EU law autonomy.

  98. 98.

    Gaja (2013), p. 3 [emphasis added].

  99. 99.

    Draft articles on the responsibility of international organizations (DARIO). ‘Adopted by the International Law Commission at its sixty-third session, in 2011, and submitted to the General Assembly as a part of the Commission’s report covering the work of that session (A/66/10, para. 87).’ It is argued that DARIO, if not legally binding, may still be considered as customary international law for purposes of Strasbourg Court’s interpretations as well. See a similar argument, at: Larsen (2008), p. 517/8.

  100. 100.

    Larsen (2008), p. 512/3; See also the ICJ referring to the articles on state responsibility, at: International Court of Justice, Gabcíkovo-Nagymaros Project (Hungary/Slovakia) case, Judgment, ICJ Reports, 1997, p. 7.

  101. 101.

    See: Odermatt (2014), p. 5, who argues that during the drafting of DARIO, International Law Commission had refused to contrue specific rules on the EU—the latter being quite a special case even in terms of DARIO regulative landscape.

  102. 102.

    Art. 64 DARIO.

  103. 103.

    See the Strasbourg Court’s view on the need to engage with international law when it comes to the attribution of liability, while pointing at the Convention’s special status as a human rights treaty, at: ECtHR, Bankovic v Belgium and others, Application no. 52207/99, Grand Chamber, Decision as to the Admissibility, para 57. (‘The Court must take into account any relevant rules of international law when examining questions concerning its jurisdiction and, consequently, determine State responsibility in conformity with the governing principles of international law, although it must remain mindful of the Convention’s special character as a human rights treaty.’ Emphasis added). The international law referred to in the above provision may certainly cover DARIO as well.

  104. 104.

    See e.g., the ICJ’s view on the effective control test, at: International Court of Justice, Nicaragua v United States of America, Merits, Judgment, ICJ Reports, 1986, pp. 14–65 (para 115 et seq).

  105. 105.

    Gaja (2013), p. 2.

  106. 106.

    Meaning the ‘effective control’ of EU over Member States’ conduct. See a similar notion explained in cases of share of burden for military actions under UN umbrella, at: Larsen (2008), p. 514.

  107. 107.

    Two exemplary cases may be of this nature: Court of Justice of EU, Wachauf, Case C-5/88, [1989] ECR 2609, para 19, and, Court of Justice of EU, Bostock, Case C-2/92, [1994] ECR I-955, para 16.

  108. 108.

    Larsen (2008), p. 515 (‘The organization must exercise effective control over the conduct of an organ of a state that is placed at the organization’s disposal in order for the conduct to be attributable to the organization.’); In Loizidou, the Strasbourg Court used ‘effective overall control’ to exhibit this notion. Larsen (2008), p. 522; Cf. to Al-Jedda case, wherein the Strasbourg Court applied the effective control test in a different way, by calling UK responsible for its actions instead of UN.

  109. 109.

    International Court of Justice, United Kingdom v Albania (Corfu Channel), ICJ Reports, 1949, p. 15.

  110. 110.

    A proposal for following DARIO in the issue of division of labour between EU and Member states when it comes to joint responsibility has been given since Bosphorus. See: Hoffmeister (2006), p. 447; Cf.: Gaja (2013), p. 3, who argues that the DAA builds upon the idea that Member States—when implementing an EU law obligation—are kept responsible for the mere fact of implementing the EU law.

  111. 111.

    A case of attributing responsibility in this regard is the following provision of the Inter-American Court of Human Rights case: ‘An illegal act which violates human rights and which is initially not directly imputable to a State […] can lead to international responsibility of the State, not because of the act itself, but because of the lack of due diligence to prevent the violation or to respond to it as required by the Convention.’ (Inter-American Court of Human Rights, Velásquez-Rodríguez v. Honduras, judgment of 29 July 1988, at para. 172) [emphasis added].

  112. 112.

    See e.g. the explanation at: Franklin (2010–2011), p. 153 (‘Member States will clearly be understood as acting within the scope of application of EU law where they act in order to implement, enforce or interpret EU secondary legislation such as regulations or directives at national level. The Court has indeed come to view this simply as alogical extension of its jurisdiction to assess the legality of EU action, since Member States in such cases are seen to be acting as agents of the EU.’).

  113. 113.

    ECtHR, Behrami &Saramati, Grand Chamber, Decision As To The Admissibility, Application no. 71412/01 Agim BEHRAMI and Bekir BEHRAMI v. France and Application no. 78166/01 by Ruzhdi SARAMATI v. France, Germany and Norway, para. 143.

  114. 114.

    ECtHR, Nada v. Switzerland, Grand Chamber, Application no. 10593/08, Judgment, Strasbourg, 12 September 2012, para. 120 [emphasis added].

  115. 115.

    CDDH-UE (2011)16fin, para. 52.

  116. 116.

    See e.g.: Hart (2010), p. 540, showing that friendly settlement is a mechanism that was originally and now used for the consensus between the applicant and respondent, something differing from its use in the co-respondent mechanism.

  117. 117.

    See e.g.: Friendly Settlement and Strike Out (Articles 37–38). Article 3 of the European Convention on Human Rights: A Practitioner’s Handbook. p. 193, available at: http://www.omct.org/files/2006/11/3633/handbook1_eng_08_part8.pdf; See also: Weber (2007), pp. 223 et seq.

  118. 118.

    As prohibited by Protocol 8 (1)b.

  119. 119.

    ‘[T]he Court will examine the terms with a view to establishing whether respect for human rights as defined in the Convention and the protocols is upheld in the declaration.’ Friendly Settlement and Strike Out, op. cit. note 117, p. 194.

  120. 120.

    Art 39 (1) ECHR.

  121. 121.

    On the openness concept of the EU Treaties, see: Alemanno and Stefan (2014), p. 104.

  122. 122.

    CDDH-UE (2011)16fin, para. 53.

  123. 123.

    See also: European Court of Human Rights, Unilateral declarations: policy and practice, 2012, available at: http://www.echr.coe.int/Documents/Unilateral_declarations_ENG.pdf; See e.g.: ECtHR, Bekerman v. Liechtenstein (no. 15994/10), 29 November 2011; ECtHR, Liptay v. Hungary, Application no. 12144/09, 22 May 2012.

  124. 124.

    Something that might result in the Strasbourg Court dealing with the ‘separation thesis’ between the EU Court and national constitutional courts’ competences. On the ‘separation thesis’, see: Thym (2013b), p. 404.

  125. 125.

    Tomuschat (2002), p. 183.

  126. 126.

    Groussot et al. (2011), p. 11.

  127. 127.

    CDDH-UE (2011)16fin, Art 3 (2).

  128. 128.

    See: den Heijer (2013), p. 434; One should note that, although the Member States’ actions or omissions might have resulted from the application of an EU law obligation, many of such actions may have already been checked abstractly by the Luxembourg Court’s preliminary reference procedure. See e.g.: Carrubba and Murrah (2005), p. 401; The European Parliament had proposed a less mature model of making this established, by proposing that: ‘[…]any application by a natural or legal person concerning an act or failure to act by an institution or body of the Union should be directed solely against the latter and that similarly any application concerning a measure by means of which a Member State implements the law of the Union should be directed solely against the Member State, without prejudice to the principle that, where there might be any doubt about the way in which responsibility is shared, an application may be brought simultaneously against the Union and the Member State.’ 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. 9 [emphasis added]. The latter proposal innovates the notion of ‘doubt’ on the share of burden, which is not a practical instrument as a party may not be checked admissibility before Strasbourg on its targeted respondents on basis of its ‘doubt’. The current proposal on the co-respondent therefore seems safer and more legally certain.

  129. 129.

    Adding here that such autonomous consideration of its own jurisdiction is kept strongly also by the Strasbourg Court. See e.g.: Sweet (2009), p. 640.

  130. 130.

    Cf.: One may apply an argument from the following article with analogy. Alter and Helfer (2010), p. 586, who argues that this kind of role, which we think Strasbourg Court may attain, at the end of the day may be one which is made to fill in the treaty gaps—many of which do really need Strasbourg to go beyond it a logically allowed function.

  131. 131.

    For a general scenario on this, see also: Lock (2010), p. 784.

  132. 132.

    CDDH-UE (2011)16fin, Art 3 (2) [emphasis added].

  133. 133.

    Gragl (2013), p. 158. To this extent, Gragl insists that this situation is one in which the Member State(s) had no discretion in implementing EU law. Gragl (2013), p. 158.

  134. 134.

    See: Lenaerts (2012), p. 378, on the scope of EU Member States implementing actions that may be reviewed against human rights law; See also on this issue: Gragl (2013), p. 158.

  135. 135.

    Gragl takes the examples of Bosphorus and Operation Atalanta to demonstrate examples of Member States implementing an EU law obligation without state discretion. See: Gragl (2013), p. 163.

  136. 136.

    Cf.: Eckes (2013), p. 268, who argues that ‘notably’ refers to the cases wherein Member States did also use discretion when implementing an obligation of EU law.

  137. 137.

    Lenaerts (2012), p. 380.

  138. 138.

    Contra: Gragl insists that, as opposed to my view on the criterion of ‘majority’, this criterion basically refers to the fact that it would suffice for the Court that ‘the element of a normative conflict is simply one of several such elements which are not included in this non-exhaustive enumeration.’ See: Gragl (2013), p. 161; In Gragl’s view, therefore, this standard is fulfilled simply when the Court is convinced that merely one of the normative conflicts—as opposed to the majority of normative conflicts, which is my view—is found to derive from the alleged violation and its relationship with EU law.

  139. 139.

    Gragl rightly makes the argument, as shown above as well, that the application of the co-respondent admissibility criteria are especially problematic in the case of omissions, as the Strasbourg Court would in principle need to embark on EU law to find out who is the competent authority that should have taken the relevant decision—and which it omitted to take. See: Gragl (2013), p. 164.

  140. 140.

    In this regard, the Strasbourg Court in MSS had noted ‘that Article 3 § 2 of the Dublin Regulation provides that, by derogation from the general rule set forth in Article 3 § 1, each member State may examine an application for asylum lodged with it by a third-country national, even if such examination is not its responsibility under the criteria laid down in the Regulation. This is the so-called “sovereignty” clause. In such a case, the State concerned becomes the member State responsible for the purposes of the Regulation and takes on the obligations associated with that responsibility.’ (ECtHR, M.S.S. v. Belgium and Greece, Application no. 30696/09, Judgment, Strasbourg, 21 January 2011, para. 339). MSS is taken as an example to demonstrate that the commission of a violation could have been done simultaneously by disregarding an EU law provision (which gives right to the use of the co-respondent mechanism) and by omitting from making use of its sovereign actions (which would not give the right to anyone to join as co-respondent). This basically means that to make the assessment on EU’s eligibility to stand as co-respondent, the Strasbourg Court may only rely on the part of the argument that the alleged violation has been caused by the respondent Member State’s use of ‘sovereignty clause’, something that goes outside the scope of EU law, therefore call the EU’s request to join as co-respondent as not admissible. On the other hand, in this scenario, the EU could have been admitted to join as co-respondent, but the respondent Member State(s) may claim that the alleged violation did not take place within the scope of EU law obligations. In deciding whether to choose between the first or second option, as shown here, the Strasbourg Court would basically be allowed to interpret EU law, as the Member States’ obligations under it and possible derogations from such obligations would need to be defined as a prior issue before deciding on the admissibility of the EU as co-respondent; On the MSS’s sovereignty clause, see also: Gragl (2013), p. 120/1.

  141. 141.

    Cf.: Lang (1986), p. 174, who promotes the idea that there is no room for third parties (like Strasbourg Court) to enter into the borders of EU law for purposes of demarcating the competences and consequently the responsibility between the EU and its Member States—something that is promoted as being of an internal nature.

  142. 142.

    See on this: Court of Justice of EU, Case C-13/00 Commission v. Ireland (Mox Plant), Judgment of the Court, 19 March 2002, para. 154; Many see the Member States’ courts as the agents of the Luxembourg Court, but the original argument maintains that it was Luxembourg Court which was foreseen to stand as a Member States’ agent, something which cannot anymore remain a reality. See: Alter (1998), pp. 123 et seq; See also: Gragl (2013), p. 158.

  143. 143.

    Contra on whether the Luxembourg Court is autonomous towards the Member States: Alter (1998), pp. 126 et seq, who argues that the Luxembourg Court at least in its internal autonomy context may be considered an agent of Member States in controlling the EU institutions.

  144. 144.

    Accord: On the nature of primacy of EU law and its effect on Member States actions, see: Herman Reestman (2005), pp. 103 et seq.

  145. 145.

    In this regard, Gragl demonstrates that in the previous drafts of the DAA this provision had required a ‘substantive link with European Union legal acts or measures […]’. Gragl demonstrates that the drafters at that time had considered it sufficient to leave this wide-scope criterion. See: Gragl (2013), p. 157/8.

  146. 146.

    Alter (1998), pp. 121 et seq.

  147. 147.

    Groussot et al. (2011), p. 12; See also: Streinz (2013), p. 2.

  148. 148.

    d’Aspremont (2007), p. 101.

  149. 149.

    CDDH-UE (2011)16fin, Art 3 (3); Gragl points that the previous version of this provision had also mentioned the fact that it is only the Member States which have the constitutional capacity to amend the Treaties. In this new version of this provision that note, according to Gragl, has been removed. See: Gragl (2013), p. 166.

  150. 150.

    E.g.: Raba (2013), p. 564; See also: Gragl (2013), p. 166.

  151. 151.

    It is suggested that the EU Court, in its functional position, is always pressured by the member states in the sense that a ruling of it could be overcome by a Treaty revision. If this would be an argument, the Strasbourg Court’s position in this context would be to strengthen the role of the EU Court as untouchable from member states when it comes to fundamental rights enshrined by the Convention. See the first argument at: Carrubba et al. (2008), p. 438 et seq.

  152. 152.

    This being a normal international organizations’ feature, wherein member states do still remain the masters of international treaties. See: Alter and Helfer (2010), p. 568/9.

  153. 153.

    Lock (2010), p. 783; Contra.: Gragl keeps insisting that the current provision does not leave room to the Strasbourg Court to interpret EU law in a binding manner. Moreover, Gragl makes the argument that the Court will only look at where the legal origin of the alleged violation is in this regard, but does not mention anything in regard to the worry which I have expressed above. See: Gragl (2013), p. 166; One should disagree again with Gragl as the Strasbourg Court may not make such an assessment that simply, as it would need to examine whether—for the purposes of the criteria specified in Art. 3 (3) DAA—a certain legal basis clearly rests with EU primary law or not. Making this analysis is not possible with an external outlook, as the EU Treaties do have very complex structures which need be interpreted to reveal whether a certain legal basis stands merely at the level of the Treaties and not at the level of other secondary sources of EU law.

  154. 154.

    Lock (2012), p. 172/2.

  155. 155.

    On the debate on locus standi for non-privileged applicants, e.g. see the following CJEU cases: Case 25/62, Plaumann & Co v Commission [1963] ECR 95; Case C-309/89, Codorniu SA v Council [1994] ECR I-1853, para. 20; Case T-177/01 Jégo-Quéré v Commission [2002] ECR II-2365, para. 51; Case C-209/94P, Buralux and Others v Council [1996] ECR I-615, para. 25; Case 11/82, A.E. Piraiki-Patraiki v Commission [1985] ECR 207; Joined Cases 106-7/63, Alfred Toepfer and Getreide-Import Gesellschaft v Commission [1965] ECR 405; Case C-50/00, P Unión de Pequeňos Agricultores v Council [2002] ECR I-6677—Opinion by Advocate General Jacobs, para. 60; See also academic literature on this matter: Arnull (1995), p. 7–49; Tridimas and Poli (2008); Balthasar (2010), pp. 542–550. (ToL introduced a new category of acts [regulatory acts] that could be challenged using action for annulment mechanism).

  156. 156.

    E.g. cases on failure to act before Luxembourg Court: Cases 10 and 18/68, Societa ‘Eridania’ Zuccherifici Nazionali v Commission [1969] ECR 459; Case 247/87, Star Fruit Company v Commission [1989] ECR 291; Case T-277/94, Associazione Italiana Tecnico Economica del Cemento (AITEC) v Commission of the European Communities [1996] ECR II-351; Joined cases 166 and 220/86, Irish Cement Limited v Commission of the European Communities [1988] ECR 6473; and, Case T-387/94, Asia Motor France SA v Commission [1996] ECR II-961.

  157. 157.

    Gragl also questions whether the entire exclusion of primary law from the Strasbourg’s jurisdiction may be an option. He maintains that ‘since the European Union is unable to redress human rights violations rooted in primary law, this specific layer of EU law [primary law] should arguably not be covered by the ECtHR’s jurisdiction’. See: Gragl (2013), p. 127.

  158. 158.

    Court of Justice of EU, Opinion 1/94 [1994] ECR I-5267, paras. 107–109.

  159. 159.

    CDDH-UE (2011)16fin, Explanatory Report to the DAA, para. 46.

  160. 160.

    On the legal status of the Charter, see: Lenaerts (2012), p. 377 et seq.

  161. 161.

    However, to note, the EU law may not be invalidated before Member States’ national courts: Court of Justice of EU, Foto-Frost v Hauptzollamt Lübeck-Ost, Case 314/85 [1987] ECR 4199.

  162. 162.

    See e.g.: van den Berghe (2010), p. 122.

  163. 163.

    BverfGE, 2 BvE 2/08 Gauweiler v Treaty of Lisbon, judgment of 30 June 2009, available at http://www.bundesverfassungsgericht.de/entscheidungen/es20090630_2bve000208en.html; Thym (2009), p. 1795–1822; Editorial Comments (2009), p. 1023–1033.

  164. 164.

    Gragl, referring to O’Meara, notes that it would be especially interesting to see Member States joining as co-respondents in a case involving an obligation relating to the primacy of EU law question (Gragl 2013, p. 167).

  165. 165.

    Explanatory Report to the DAA, Art. 49.

  166. 166.

    Gaja (2013), p. 6.

  167. 167.

    Gragl (2013), p. 156.

  168. 168.

    In this regard, it is worth noting that the Luxembourg Court had ruled in Opinion 2/00 that its opinion on an international agreement ‘is not intended to solve difficulties associated with implementation of an envisaged agreement which falls within shared Community and Member State competence.’ Court of Justice of EU, Opinion 2/00 [2001] ECR I-9713, paras. 17/8. This assumed, the Luxembourg Court would not be intended to solve any of the difficulties that would seem in the co-respondent mechanism or prior involvement, and other issues, through its opinion on the DAA. These ambiguities will remain to be solved through the regular case-law.

  169. 169.

    E.g.: den Heijer (2013), p. 434; Gragl in this regard questions why co-respondents should not be forcibly requested to join. In this regard, Gragl advocates for inserting a provision in the DAA that would make it an obligation to co-respondents to join the procedure whenever their law is at stake. See: Gragl (2013), p. 156. This position of Gragl has been roughly in the same way argued by the Luxembourg Court in its Opinion 2/13. See supra the subchapter on Opinion 2/13 which explicates this in details.

  170. 170.

    Art 3 DAA [emphasis added]; See also: Raba (2013), p. 565.

  171. 171.

    Explanatory Report to the DAA, para. 53.

  172. 172.

    Gragl (2013), p. 142.

  173. 173.

    One should take the example of the European Arrest Warrant to consider a good case of close judicial cooperation between the EU and its Member States as regards arrest warrants. This might serve as a promising example to optimistically trust that the EU and its Member States can deal themselves in finding a balanced and fair division of burden when they are found as co-respondents liable for an ECHR right violation. See generally: Alegre and Leaf (2004), p. 201 et seq.

  174. 174.

    Cf.: Kokott and Sobotta (2012), pp. 1016 et seq, who argue—by contrast to this possibility—that the EU Court itself applies a rather high standard on human rights, at the level to which UN law would be refused application if it contradicts EU Treaties human rights law.

  175. 175.

    As an additional example, Gragl argues that in a scenario where EU does not joint as co-respondent and the violation stems from primary law, the Member State(s) as the original respondents may not counter the EU’s decision not to join, therefore the Strasbourg Court would apply on them the Mathews standard on Member States as the sole respondents for primary law violations. See: Gragl (2013), p. 157.

  176. 176.

    Casteleiro (2014), p. 118/9.

  177. 177.

    Art. 3 (2 & 3) DAA; On the voluntary nature of co-respondent mechanism, see also: O’Meara (2011), p. 1821.

  178. 178.

    Contra: DAA ‘leaves open the question as to whether it is for the EU or for the Court to decide when and whether the requirements to trigger the co-respondent mechanism have been met.’ (AIRE centre, AI & ICJ (2013) ‘European Union Accession to the European Convention on Human Rights: Briefing Note on the Accession Agreement’. (Brussels, 6 September 2013, p. 3).

  179. 179.

    Thym (2013a), p. 2.

  180. 180.

    Contra: Gragl insists that the wording ‘appear’ basically means that the Strasbourg Court is now allowed to examine in-depth the EU law for the purpose of this provision. Gragl insists that the wording ‘appear’ is basically similar to the Strasbourg Court needing to ‘view’ whether the link required in the above mentioned provision exists. See: Gragl (2013), p. 159. In contrast to Gragl, I argue that one may not that simply calculate the range of jurisdiction which comes under the term ‘appear’, since, as the provision stands right now, the Strasbourg Court may use the jurisdiction of ‘appearing’ to the extent of being convinced that the linkage between the obligation and alleged violation is clear enough. Such jurisdiction will certainly provide the Court with indefinite capacity to enter into EU law borders in order to find out that linkage. It would not be valid to uphold the point that ‘appearing’ would merely allow the Court to find this link from an external position, as EU law is so complex that such ‘view’ to be taken without clear in-depth analysis is not possible.

  181. 181.

    Contra: Gragl insists that this wording does not give to the Strasbourg Court any ‘persuasive’ jurisdiction to embark on the EU law. I disagree for the abovementioned reasons with Gragl on this issue. See: Gragl (2013), p. 160.

  182. 182.

    Cf.: Licková (2008), p. 468, arguing that: ‘[b]ut whether the division of powers within the EU will be taken into consideration internationally depends entirely on the agreement of third parties.’

  183. 183.

    Thym (2013a), p. 2.

  184. 184.

    E.g.: Tulkens (2013), p. 11; See also: Gragl (2013), p. 168; Contra.: An example of separate responsibility is the Community’s declaration of competence annexed to the Convention on the Transboundary Effects of Industrial Accidents, which, amongst others, reads: ‘[a]s regards the application of the Convention, the Community and its Member States are responsible, within their respective spheres of competence’. Emphasis added. See: Annex II to Council Dec 98/685 [1998] OJ L 326/1; The latter clearly seems to establish separate responsibility between the EU and its Member States, which goes contrary to the model of responsibility established by the DAA’s co-respondent mechanism.

  185. 185.

    Tomuschat (1983), p. 130/1; Cf.: Ryngaert (2011), p. 1015 (‘[…] allowing a Member State to be held responsible for an IO’s own conduct during its lifetime may tend to negate the separate personality of the […International Organization…].’); Cf.: Gragl (2013), p. 168, who notes that there may be the possibility for each co-respondent to make arguments before the Strasbourg Court on issues relating to their individual liability for the alleged violation.

  186. 186.

    ECtHR (GC), Assanidze v. Georgia (Appl. No. 71503/01), judgment of 8 April 2004, para. 141.

  187. 187.

    Adopted at the Inter-American Specialized Conference on Human Rights, San José, Costa Rica, 22 November 1969.

  188. 188.

    Emphasis added.

  189. 189.

    Cf.: Opinion of AG Tesauro delivered on 13 November 1997, in case CJEU, Hermès International v FHT Marketing, Case C-53/96 [1998] ECR I-3603, p. 3621 (‘The […EU…] legal system is characterised by the simultaneous application of provisions of various origins, international, […EU…] and national; but it nevertheless seeks to function and to represent itself to the outside world as a unified system. That is, one might say, the inherent nature of the system which, while guaranteeing the maintenance of the realities of States and of individual interests of all kinds, also seeks to achieve a unified modus operandi. Its steadfast adherence to that aim, which the Court itself has described as an obligation of solidarity, is certainly lent considerable weight by the judicial review mechanism which is defined in the Treaty and relies on the simultaneous support of the […EU…] court and the national courts.’). This balance sought to be established by the above statement may seriously become at risk if the model of distributing liability between the EU and Member States would have followed the ACHR approach.

  190. 190.

    Another scenario is provided for in Art. 3 (7) DAT which establishes that there is no exception to the rule on joint responsibility ‘[…] unless the Court, on the basis of the reasons given by the respondent and the co-respondent, and having sought the views of the applicant, decides that only one of them be held responsible.’ Attributing individual responsibility under this scenario, therefore, may be possible only with the assent of the respondent and co-respondent and their reasoned claim. That means that, practically, both of them need to prove before the Court that they have reasons—including a plan of reasons to attribute the burden to only one of them—which would convince the Court to take that individualized decision. This scenario, however, seems to leave room to the Strasbourg Court to enter into the EU law domain, since the Court would need to review the reasons which the respondent and co-respondent(s) have provided and rule upon their justification as means to accept or deny the individual responsibility of one of them; The latter argument is supported in the same form with the recent Opinion 2/13 (para. 234).

  191. 191.

    Lock (2010), p. 787; Gragl (2013), p. 168/9; Gragl mentions the fact that there may be situations in which Member State(s) will be pushed internally for certain political reasons not to accept the blame on the violation judged by the Strasbourg Court, especially in cases when there are monetary compensations (Gragl 2013, p. 168).

  192. 192.

    For instance, the UN Convention on the Law of the Sea provides a different model of separating the responsibility between state parties while not interfering to their internal legal orders. Art. 6(2) (Annex IX)—for that purpose—reads: ‘Any State Party may request an international organization or its member States which are States Parties for information as to who has responsibility in respect of any specific matter. The organization and the member States concerned shall provide this information.’ [emphasis added]; Should DAA have adopted this model of separating responsibility without entering the territory of EU law, it may have been a solution that would have both respected the EU law autonomy and provided for an individualized responsibility between EU and its Member States. This model—however—may have only worked if EU and its Member States would have offered a fully bona fide respect for announcing their individual responsibility: otherwise, this model would have not worked effectively.

  193. 193.

    On the role of Member States on the constitutional Competence-Competence of the EU Treaties, see: Dyevre (2013), p. 149.

  194. 194.

    For this reason, Gragl argues that there is the need to establish an internal EU mechanism to attribute responsibility between the EU and its Member State(s) when they find themselves subject to a decision on joint-liability of the Strasbourg Court. See: Gragl (2013), p. 168/9. I argue that this mechanism may be the Luxembourg Court, which needs a certain jurisdiction to be added to it to be able to rule on such issues. However, legalizing this issue too much may push the Luxembourg Court on the borders of sovereign rights of Member States to decide themselves through political means on the fulfillment of obligations which they undertake under international law; Gragl also argues that attaching this role to the Luxembourg Court may be time-consuming, which would then undermine the credibility of the procedure. However, Gragl notes that if Luxembourg Court was given this authority then it would play an important role to better delineating the borders of responsibility between the EU and its Member States in the context of EU law obligations. In such circumstances, Gragl notes that for legislative acts, it is the EU legislature (institutions) which will be held liable. However, Gragl rightly points that this would be a bit more difficult when it comes to attributing the burden for directives, in which case the Luxembourg Court may either choose EU or its Member States: depending on the margin of appreciation which the latter had enjoyed in implementing a certain legal obligation. See: Gragl (2013), p. 169/70.

  195. 195.

    Lock (2010), p. 787; Contra: Gragl, in addition to the Luxembourg Court, proposes that such a mechanism may be in the form of a committee composed of EU and member states’ representatives. See: Gragl (2013), p. 169; On the model of internal apportion of the monetary burden in cases of joint responsibility, Cf.: Gragl (2013), p. 169, who requests a mechanism to play this role. As regards the share of burden, Gragl proposes that if the Member State(s) acted without state discretion, it is the EU which should cover the costs of compensation. If the Member State(s) acted with a certain state discretion, and they did not request the preliminary reference of the EU Court under Art. 267 (3) TFEU, then it is the member states which in principle should incur such costs (Gragl 2013, p. 169).

  196. 196.

    Gragl (2013), p. 169. With regard for a treaty amendment, I argue that such type of jurisdiction—if added through an internal EU regulation—would prejudice the competences of the EU Court, therefore violate the prohibition which Protocol 8 which requires that accession not affect the treaty-competences of the EU institutions.

  197. 197.

    On the latter argument, see e.g.: Chatháin (1999), p. 466, referring to the uncertainty over the use of this rule on the participation of EU and its Member States to the WTO mechanisms; See also: Heliskoski (1996), p. 116, referring to the Commission’s proposal to adopt a code that would regulate the means of participation of EU and its Member States in the WTO mechanisms; The same seems requested by the Luxembourg Court in Opinion 2/13 as regards the mode of sharing the burden between EU and its Member States for ECHR violations.

  198. 198.

    Inter-American Court of Human Rights, Hilaire v. Trinidad and Tobago, Preliminary Objections, judgment of 1 September 2001, Series C, No. 80, para. 82.

  199. 199.

    Jacque (2011), p. 1016.

  200. 200.

    To note, the margin of appreciation is an instrument of the Court which is not applied uniformly on all parties: the Court chooses to decide on the degree to which margin of appreciation is recognized to a certain state on a certain segment of the Convention on basis of its own appreciation of national legal and factual factors. On the divergent degrees of the margin of appreciation recognized to states within the context of the Court’s approaches, see e.g.: Helfer (1993), pp. 136 et seq.

  201. 201.

    One may counter-argue this by maintaining that the margin of appreciation does not vary according to the identity of the state or contracting party, as the Strasbourg Court applies a one-fits-all model of margin of appreciation on individual rights. I tend to disagree with this from a particularistic perspective, since the Strasbourg Court often devises the extent of the margin of appreciation on basis of the context in which the human rights operate in a certain constitutional system. One example may be the right to property: in eastern (former communist) countries, the Court recognizes a rather broad margin of appreciation which it does not recognize on western European countries (due to the pressing needs which the Eastern European countries have in this regard, that makes their context difference from those of the Western Europe). One needs to recognize that the ‘margin allows a country a degree of defence at the European Court where judges are obliged to take into account the cultural, historic and philosophical differences between Strasbourg and the nation in question since what is right for Spain may not be right for the UK.’ (See: ‘Human Rights Act: How it works.’ BBC, 29 September 2000. Available at: http://news.bbc.co.uk/2/hi/uk_news/946390.stm); To support this, Lavender further demonstrates that the use of margin of appreciation depends from the context of the case and legal system where it applies. See: Lavender (1997), p. 382. Another example may be the difference between the EU under the Bosphorus margin of appreciation and state contracting parties which have no systemic presumption like Bosphorus. Another example may the right limitations to the right to vote and prohibition of discrimination, which the Strasbourg Court has recognized to Bosnia until the Sejdic case, a sort of margin of appreciation which the Court did not recognize to any other contracting party (it removed it even from Bosnia when it recently adopted Sejdic case, and then Zornic case). Therefore, the note made above remains valid in the form in which it was given.

  202. 202.

    Sarvarian (2014), p. 102.

  203. 203.

    Gragl (2013), p. 168/9.

  204. 204.

    Committee on Economic, Social and Cultural Rights, [The Right to Adequate Food (Art. 11 of the International Covenant on Economic, Social and Cultural Rights)], General Comment No. 12 (1999), E/C.12/1999/5, para. 38 [emphasis added].

  205. 205.

    ECtHR, Soering v. United Kingdom, ECtHR, Series A No. 161 (1989), para. 34; See also, EctHR, Ireland v. United Kingdom judgment of 18 January 1978, Series A No. 25, p. 90 (para. 239).

  206. 206.

    International Court of Justice, Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, ICJ Reports, 1951, p. 23.

  207. 207.

    Explanatory Report to the DAA, para. 63.

  208. 208.

    Emphasis added.

  209. 209.

    See also: Advisory Opinion of the Seabed Disputes Chamber of the International Tribunal for the Law Of the Sea on Responsibilities and Obligations of States sponsoring persons and entities with respect to activities in the Area, para. 201 et seq. Available at: http://www.itlos.org/fileadmin/itlos/documents/cases/case_no_17/adv_op_010211.pdf.

  210. 210.

    E.g. On member states as agents of EU for implementing EU law, see: Franklin (2010–2011), pp. 153 et seq; An exemplary case may be: Court of Justice of EU, Promusicae, Case C-275/06, [2008] ECR I-271, para 68.

  211. 211.

    E.g. Hancox (2013), p. 1426, on how far the notion of implementing measure may go.

  212. 212.

    Gragl (2013), p. 167. Gragl basically argues that the co-respondent mechanism takes into account the EU specificities, and relies on the good will of the Strasbourg Court on EU law autonomy: something Gragl says has been demonstrated also with the previous case-law on EU of the Strasbourg Court (Gragl 2013, p. 167). One additional argument (in addition to those mentioned above in the body of the text) which supports this book’s line of reasoning—and also disagrees with Gragl—is Luxembourg Court’s Opinion 2/13, which tries, and sometimes also finds, some of these loopholes which the Court says may seriously undermine EU law autonomy (see especially para. 222 et seq of Opinion 2/13).

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Korenica, F. (2015). Attribution of Liability Under the Co-respondent Mechanism. In: The EU Accession to the ECHR. Springer, Cham. https://doi.org/10.1007/978-3-319-21759-8_6

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