Principles and practices of EU external representation - Asser Institute

Accession to the ECHR as the final step of mutual recognitiona special rule on attribution to the EU of conduct of its Member States whenimplementing binding acts of the EU. 62 In the common case, the Member Statesare in charge of implementing and applying EU legislation. This is for instancethe case where national customs authorities implement tariff agreements concludedby the EU. It raises intricate questions of whether this act should beattributed to the Member States (traditional view of public international law) orthe EU (which is in actual fact responsible for the substance of the measure).The complex and dynamic task division between the EU and its MemberStates could lead the ECtHR to offer an interpretation of substantive EU lawbinding on the Court of Justice. 63 This would challenge the judicial monopolyof the Court of Justice. After accession, both the EU and its Member Statesare bound under international law by the ECtHR’s rulings to which they wereparties. The binding force extends to the Court of Justice as an institution ofthe EU.The co-respondent mechanism is aimed to avoid this situation. It will ‘allowthe EU to become a co-respondent to proceedings instituted against one ormore of its Member States and, similarly, to allow the EU Member States tobecome co-respondents to proceedings instituted against the EU.’ 64 The corespondentmechanism permits the ECtHR to refrain from determining who isthe correct respondent or how responsibility should be apportioned. Indeed, itdeclares joint responsibility of the respondent and co-respondent to be thecommon case. This is clearly expressed in the explanatory report stating:‘Should the Court find [a] violation, it is expected that it would ordinarily do sojointly against the respondent and the co-respondent(s)’. 65 The respondent andthe co-respondent(s) may further make joint submissions to the Court thatresponsibility for any given alleged violation should be attributed only to oneof them. 66 This will for most cases unburden the Strasbourg Court from the taskof assessing the distribution of competences between the EU and its MemberStates. However, it does not exclude that the ECtHR may choose to apportionresponsibility in the individual case, which will require it also to consider attribution.Furthermore, while no High Contracting Party may be compelled to becomea co-respondent, the Strasbourg Court may terminate the participation of theco-respondent. 67 Both actions of the ECtHR imply a prior decision on how theresponsibility should be apportioned or attributed. Hence, the co-respondentmechanism tries to strike a balance between not limiting the formal competencesof the ECtHR but determining how these competences are usuallyexercised in practice. In any event, in view to the rather cautious approach ofthe Strasbourg Court in the past it can be expected that the Strasbourg Court62 See: Commentary to Draft Art. 64, ibid., para. 1.63 See more in detail on the co-respondent mechanism and autonomy: C. Eckes, supra note29.64 Draft revised Explanatory report to draft Agreement on the Accession of the European Unionto the European Convention on Human Rights, supra note 54, at 11, para. 31.65 Ibid., para. 54.66 Ibid.67 Ibid., paras. 47 and 51.113CLEER WORKING PAPERS 2012/5