Two Courts, Two Visions

The diverging standards of protection concerning the right to a fair trial, as interpreted by the CJEU and the ECtHR, remain a critical obstacle to the EU’s renewed attempt at accession to the ECHR. In this field, the two Courts seem to be drifting further apart rather than converging, leading to unresolved conflicts between the standard of fundamental rights protection and mutual trust obligations in the EU. Except in the unlikely event of a course-correction by the CJEU, this means that we are no closer to accession today than we were ten years ago, when the now-infamous Opinion 2/13 was handed down.

The new accession agreement: third time’s the charm?

The process of EU accession to the ECHR has been a long one, thwarted so far by two negative opinions of the CJEU (firstly in Opinion 2/94 and subsequently in Opinion 2/13). Since 2020, a third attempt at completing the process of accession has been ongoing. This culminated with the provisional approval of a new accession agreement in March 2023. Negotiations for this agreement were structured around the main concerns raised by the CJEU in Opinion 2/13, which have been extensively discussed in the last ten years (see e.g. here and here).

It is remarkable to observe how some of these concerns, however, have been given more attention than others. Even a cursory reading of the negotiation meeting reports shows that the issue of mutual trust, which had been central in Opinion 2/13, was dismissed with a quick reference and not much substance. The agreement merely states that accession shall not affect the application of the principle of mutual trust, while at the same time remarking that the ECHR standard of protection of human rights must be guaranteed (Article 6). This is supported by a laconic reference to an increasing convergence in the case law of the two Courts, which according to the negotiators means that mutual trust today is no longer a roadblock to accession (paras 87-88 Explanatory Memorandum).

As already discussed elsewhere, this convergence is questionable. By handpicking selected cases that demonstrate convergence, the negotiators attempted to present mutual trust as a non-issue. However, this does not fully reflect reality. In particular, the case law concerning the right to a fair trial (Article 6 ECHR/Article 47(2) Charter) shows a very different picture: one of increasing divergence in the required standard of protection.

Mutual trust as an obstacle for accession

In order to understand the relevance of divergence in the right to a fair trial case law for accession, it is useful to recall briefly why and how mutual trust became such an obstacle for accession in the first place. As well as introducing a duty to accede to the ECHR (Art. 6(2) TEU), the Lisbon Treaty also introduced some limitations to this accession, including the need to preserve “the specific characteristics of the Union” (Protocol No 8).

One of those characteristics is the autonomy of EU law, which finds its raison d’être in the principle of mutual trust. Mutual trust comprises the idea that Member States must trust that other Member States comply with EU law and consequently must recognise their legal outcomes (e.g. judicial decisions or standards) without questioning their fundamental rights’ compliance. This is essential to allow the creation and maintenance of an area without internal borders – particularly for what concerns the EU’s Area of Freedom, Security, and Justice – and ensure coherency in the application of EU law.

The issue arose in Opinion 2/13 because disagreements had emerged between the CJEU and the ECtHR on the extent to which Member States should check each other’s fundamental rights compliance, especially in cases related to asylum and European Arrest Warrants (EAW). The CJEU was concerned that accession would oblige Member States to check that other States observed fundamental rights in individual cases, as required by the ECtHR, rather than accept its own requirement of an automatic application of mutual trust. This was liable to upset the autonomy of EU law by putting into question the presumed sufficiency of its fundamental rights protection.

Since 2014, the case law on permissible derogations from mutual trust has developed substantially. These developments have sometimes softened the conflict between the Courts, as highlighted in the accession agreement, and sometimes exacerbated the tension. The right to a fair trial is an example of the latter: while the CJEU continues to apply a stringent test to derogate from mutual trust, the ECtHR has seemingly lowered its threshold. The coming sections explore these developments to show the remaining areas of divergence and their implication for accession.

The CJEU doubles down on the two-step test

The CJEU has developed an extensive body of case law (re)defining which exceptional circumstances might justify the suspension of mutual trust. The prototypical formulation is set out in Aranyosi and Căldăraru. This two-step test prescribes that mutual trust may only be suspended if national courts can demonstrate that systemic deficiencies in the issuing Member State create a real risk of violation of a fundamental right and that, in the specific case, there are substantial grounds for concluding that the individual subject to the EAW request will concretely run that risk.

In some areas, such as violations of the prohibition of inhuman and degrading treatment (Article 3 ECHR/Article 4 Charter), the CJEU has loosened the requirement of systemic deficiencies (see e.g. C.K. and others). This brings it in alignment with the ECtHR’s duty for national courts to check for the existence of a manifest deficiency of any serious allegation of the right not be subject to inhuman or degrading treatment (see also this comparative case compilation). However, for most other cases, the construction of exceptions to mutual trust continues to be strictly interpreted. The CJEU’s EAW cases under Article 47(2) Charter, which have been prominent of the Court’s agenda due to the rule of law backsliding in several Member States that has systematically affected judicial independence standards, demonstrate this.

The first case in point is LM. This case concerned the question of whether an individual could be surrendered when the executing authority has serious doubts whether they would receive a fair trial in the issuing state. In this case, that was due to the lack of judicial independence resulting from changes to the Polish judicial system. Alluding to the independence of courts as the “essence of the right to a fair trial” (para 59), the CJEU took the view that it would in principle be possible to suspend the execution of an EAW in case of a real risk of breach of an individual’s Article 47 Charter. However, this would only be the case if both steps of the Aranyosi test were discharged (for a wider critique, see here and here).

Since then, the CJEU has consistently confirmed the application of the two step-test in cases concerning Article 47(2) Charter. In Openbaar Ministerie I (independence of the issuing state’s judiciary) and Openbaar Ministerie II (right to a tribunal established by law in the issuing state), the CJEU held that the mere existence of systemic deficiencies concerning excessive political influence in judicial appointments in a Member State is insufficient to modify existent limits to mutual trust. It confirmed that a concrete impact on the individual must be demonstrated, and that the executing authority must request supplementary information on the individual’s real risk of their right to a fair trial before non-execution of an EAW (para 84 and subsequent). Openbaar Ministerie II further specifies that the burden of proof of this second step remains with the individual subject to the EAW (para 83).

The 2023 ruling on the surrender of Catalan politicians who fled to Belgium after the independence referendum, Puig Gordi and Others, goes even further, clarifying that both steps must be proven independently of one another. In the absence of proven, reliable and specific information which demonstrates that there are systemic deficiencies in relation to Article 47(2) Charter, a Member State cannot refuse to execute the EAW, even if there is a serious risk of a rights breach for the specific individual (para 111). In doing so, Callewaert argues, the CJEU is essentially resuscitating the original, collective test set out in N.S. and Others, which is hard to reconcile with the ECtHR’ requirement to apply an individual test.

In short, the CJEU’s jurisprudence shows that contesting the presumption of mutual trust in fair trial cases remains narrow and reserved for exceptional circumstances. The evidentiary requirements for the second step of the test are excessively demanding and in practice almost impossible to discharge, especially considering the burden of proof is on the individual. The continued deterioration of the independence and impartiality of the judiciary in several Member States also seems at odds with the insistence of the CJEU in applying the second step of the Aranyosi test (on this point, see also Inghelbrecht, Gotovuša and Holmøyvik). Given that the right to a fair trial is the pre-condition for the exercise of all other rights derived from EU law and that the lack of judicial independence jeopardises all fundamental rights (ASJP para 59) such a high threshold for disapplication of mutual trust seems also manifestly incompatible with the character and absolute nature of Article 47(2) Charter.

The ECtHR looks ahead: an either/or approach to the two-step test?

In parallel, the ECtHR has developed its own jurisprudence, although it deals with comparatively fewer cases that directly concern mutual trust. This is due to the Bosphorus presumption, under which the ECtHR considers the protection of fundamental rights within the EU to be, in principle, equivalent to that under the ECHR. This presumption is applicable in the absence of any margin of discretion in complying with an EU law obligation and when the full potential of the supervisory mechanisms provided for by EU law is deployed. Even here, it can still be rebutted if there are signs of manifest deficiency in the protection provided by EU law.

The application of Bosphorus jointly with the almost-automatic application of mutual trust schemes creates an evident gap in the protection of fundamental rights for individuals. To bypass this problem, the ECtHR has consistently held that if a serious and substantiated complaint is raised before national courts indicating that the protection of an ECHR right has been manifestly deficient and this situation cannot be remedied by EU law, national courts cannot refrain from examining that complaint simply because they are applying EU law (Avotiņš v Latvia para 116). Unlike under the CJEU jurisprudence, this individualised approach does not require systemic deficiencies to suspend mutual trust.

This approach has been bolstered in recent cases expounding on the impact of systemic deficiencies on the essence of Article 6 ECHR. In Ástráðsson v Iceland, the ECtHR assessed the impact of irregularities of judicial appointment procedures on the right to a tribunal established by law. Here, the Court established that fundamental procedural rules for appointing judges constitute the essence of a “tribunal established by law” as a stand-alone right (para 227) and irregularities in appointment procedures may constitute a violation of the right to a fair trial, without assessing a concrete lack of judicial independence faced by an individual (but subject to a three-step test, discussed here and here).

A number of other cases followed which assess systemic dysfunction in judicial appointments procedures in Poland (see e.g. Xero Flor, Advance Pharma, Reczkowicz, Dolińska-Ficek and Ozimek). Here, the ECtHR applied the Ástráðsson test to several reformed Polish courts, including several chambers of the Supreme Court and the National Council of the Judiciary, and found those courts not to be “tribunals established by law”. Therefore, their decisions constituted a breach of Article 6 ECHR due to inherently deficient judicial appointment procedure which lacked independence from legislature and executive.

It is true that these cases do not concern mutual trust schemes directly. However, the conclusion that the mere existence of systemic deficiencies in judicial appointments is sufficient for a violation of Article 6 ECHR, without demonstrating lack of judicial independence in a concrete case, has implications for the (dis)application of mutual trust. As Graver argued in the immediate aftermath of Ástráðsson, these cases imply that decisions made by an unlawfully appointed judge or tribunal not established by law would constitute a violation of Article 6 ECHR. In turn, authorities executing an EAW originating from one of these courts would be under an ECtHR-driven obligation to check whether the appointment of judges complied with Article 6 ECHR. In case of a negative answer, this could result in the non-execution of the EAW even in the absence of an individual assessment. In other words, systemic deficiencies alone may also be sufficient to set aside mutual trust.

In short, bad news for EU accession to the ECHR

While the new accession agreement takes the presumption on convergence in the case law of the two Courts as a starting point, there remain persistent differences in how mutual trust is to be applied when the right to a fair trial is at stake. These differences show that we are far from having reached a common understanding of the limits of mutual trust. The statement contained in Article 6 of the new agreement, laying down that mutual trust “shall not be affected by accession”, does nothing to change the reality that mutual trust will be affected by accession if Member States are required to adopt an ECHR standard of fundamental rights protection in all cases (as also laid down in this article). In creating this illusion that mutual trust is no longer an issue, the new agreement fails to address the autonomy concerns raised by the CJEU in Opinion 2/13. At the same time, it is not easy to imagine any alternative formulations that would “square the circle” of mutual trust while pleasing both Courts.

The simplest solution would be for the CJEU to adjust its standard of protection to that of the ECtHR and construct a wider scope for permissible derogations from mutual trust, as it already does for other rights. This would be coherent with Article 52(3) Charter, which states that Charter rights corresponding to those in the ECHR should be applied in line with the Convention. Yet, this solution does not seem realistic given the repeated refusals to move away from the Aranyosi test. Similarly, it would be surprising if the CJEU decided to backtrack from Opinion 2/13 and the importance of ensuring the autonomy of EU law in its next opinion.

Conversely, the ECtHR could maintain some form of Bosphorus presumption after accession or guarantee a wide margin of appreciation to the EU Member States when they are applying mutual trust, to account for the specificities of EU law. This is an untenable position for many reasons. Not only does it defy the point of having external fundamental rights supervision by the ECtHR, but it also creates a privileged position for the EU which could lead to tensions within the Convention system vis-à-vis non-EU countries, as it would be in essence claiming a horizontal exemption from the normal ECHR standards (for further analysis, see Imamović).

Given that the resolution of this problem is entirely up to the Courts and the willingness of the CJEU to compromise on the autonomy of EU law, it does not seem like there is much else that the new accession agreement could do to fix this. For now, with its third opinion pending, it is hard to imagine how the CJEU would be able to justify the new agreement as having addressed the tension arising between the ECHR standards of human rights protection and mutual trust-based schemes without contradicting itself in Opinion 2/13.