Principles and practices of EU external representation - TMC Asser ...

Accession to the ECHR as the final step of mutual recognition
a special rule on attribution to the EU of conduct of its Member States when
implementing binding acts of the EU. 62 In the common case, the Member States
are in charge of implementing and applying EU legislation. This is for instance
the case where national customs authorities implement tariff agreements concluded
by the EU. It raises intricate questions of whether this act should be
attributed to the Member States (traditional view of public international law) or
the EU (which is in actual fact responsible for the substance of the measure).
The complex and dynamic task division between the EU and its Member
States could lead the ECtHR to offer an interpretation of substantive EU law
binding on the Court of Justice. 63 This would challenge the judicial monopoly
of the Court of Justice. After accession, both the EU and its Member States
are bound under international law by the ECtHR’s rulings to which they were
parties. The binding force extends to the Court of Justice as an institution of
the EU.
The co-respondent mechanism is aimed to avoid this situation. It will ‘allow
the EU to become a co-respondent to proceedings instituted against one or
more of its Member States and, similarly, to allow the EU Member States to
become co-respondents to proceedings instituted against the EU.’ 64 The corespondent
mechanism permits the ECtHR to refrain from determining who is
the correct respondent or how responsibility should be apportioned. Indeed, it
declares joint responsibility of the respondent and co-respondent to be the
common case. This is clearly expressed in the explanatory report stating:
‘Should the Court find [a] violation, it is expected that it would ordinarily do so
jointly against the respondent and the co-respondent(s)’. 65 The respondent and
the co-respondent(s) may further make joint submissions to the Court that
responsibility for any given alleged violation should be attributed only to one
of them. 66 This will for most cases unburden the Strasbourg Court from the task
of assessing the distribution of competences between the EU and its Member
States. However, it does not exclude that the ECtHR may choose to apportion
responsibility in the individual case, which will require it also to consider attribution.
Furthermore, while no High Contracting Party may be compelled to become
a co-respondent, the Strasbourg Court may terminate the participation of the
co-respondent. 67 Both actions of the ECtHR imply a prior decision on how the
responsibility should be apportioned or attributed. Hence, the co-respondent
mechanism tries to strike a balance between not limiting the formal competences
of the ECtHR but determining how these competences are usually
exercised in practice. In any event, in view to the rather cautious approach of
the Strasbourg Court in the past it can be expected that the Strasbourg Court
62 See: Commentary to Draft Art. 64, ibid., para. 1.
63 See more in detail on the co-respondent mechanism and autonomy: C. Eckes, supra note
29.
64 Draft revised Explanatory report to draft Agreement on the Accession of the European Union
to the European Convention on Human Rights, supra note 54, at 11, para. 31.
65 Ibid., para. 54.
66 Ibid.
67 Ibid., paras. 47 and 51.
113
CLEER WORKING PAPERS 2012/5