When is the ECHR going to start watching the EU?
20 June 2012
In my post of today about checks on EU legality, I made the point that no institution formally monitors the EU apart from EU institutions. Moves are afoot to change that, though not in a form that diehard Eurosceptics are likely to relish. Article 6 of the Lisbon Treaty of European Union says that the EU shall accede to the ECHR. As and when that occurs, the European Court of Human Rights will assume a formal role in adjudicating upon the legality of EU measures. The details of accession could not be settled by the purely EU Treaty of Lisbon, hence the ongoing negotiations.
However, things have been happening very recently. Yesterday, 19 June, a joint informal body of members of the European Parliament and Council of Europe parliamentarians welcomed the prospect of talks resuming on EU accession to the European Convention on Human Rights, and, last week, the Committee of Ministers of the Council of Europe decided to pursue negotiations with the European Union with a view to finalising the legal instruments setting out the way in which the EU would accede to the ECHR.
Barbara Lochbihler MEP is Chair of the European Parliament Sub-Committee on Human Rights. Kerstin Lundgren is former Parliamentary Assembly Council of Europe rapporteur on the impact of the Lisbon Treaty on the Council of Europe. As they put it, high-level negotiations ground to a shuddering halt in the Autumn of 2011 after the completion of most of the technical work on accession, but immediately upon commencement of political discussions. So, agreement had already been reached on arrangements to ensure the European Parliament’s participation in the sittings of the Parliamentary Assembly when the Assembly elects judges to the European Court of Human Rights.
There have been recent urgings that national governments such as the UK and France do not stand in the way of accession, but this rather begs the question as to whether the details of accession have indeed been thrashed out. As David Cameron pointed out in January 2012, this is the first time that an organisation has acceded to the ECHR – and no ordinary organisation at that, with 27 EU members acceding to a Convention subscribed to by 47 Council of Europe members. The EU on the other hand is signatory to a whole host of Conventions, but given the intimacy of this embrace between the two supranational organisations the accession does require careful thought. It is plainly important to get things right, whether on a formal or practical level. Whether the average litigant fancies asking a domestic court for a reference to the Luxembourg Court to seek annulment of a measure, which is then refused by Luxembourg but thereafter entertained by Strasbourg, is one thing. And I am looking forward to the subsidiarity arguments which may arise: whose subsidiarity, that of the EU, or the litigant or member state affected by the EU decision? But, rather more constructively, the fact that Strasbourg is watching may help to constrain the rather more minimalist interpretations by the European institutions as to their obligations on transparency.
So, accession is well worth keeping an eye on, and, if it be the case, not running scared from. Good old-fashioned English constitutionalists are entirely comfortable with checks and balances, and one check on an over-weening EU institution might be an ECHR. Though whether the more strident press (and less subtle backbenchers) will appreciate such a Bagehotian dispensation of European bodies is perhaps more in doubt.
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The interesting question here must surely revolve around mechanisms of enforcement of decisions. As I understand it, the ECJ/CJEU can have its decisions enforced by EU institutuions (presumably the European Commission has powers to fine intransigent member-states) whereas the ECtHR relies upon moral pressure to guide member-signatories in the “right” direction.
In terms of power relations, the ECJ/CJEU must presumably be seen as the court with greatest powers out of the two? Of course, the EU institutions could allow themselves to be guided by ECtHR judgements, I suppose, which would mean having to make changes to the various EU treaties – though how this would go down in the “popular” press is anyone’s guess – er, perhaps not !!
You are absolutely right to ask, and it is not easy to give a one-line answer.
The formal structure would be that the ECtHR would receive cases which had gone to the ECJ (aka CJEU) and where the challenge to an EU measure had failed there, and the EU would be the addressee of the resulting judgment. But that formal result does not mean that the ECtHR would necessarily be regarded as the more authoritative court; compare the UKSC and the ECtHR at the moment. But remember that even now you can take a claim arising under EU law against a member state to the ECtHR, and EU law already contains and applies the principles of the ECHR. So you can and sometimes do get the ECtHR saying one thing and the ECJ saying another about the same ECHR principle (rights of privacy/Art.8 attaching to business premises I seem to recall)
In a line, the big difference would simply be that the judgement was X v. EU, rather than X v. UK.
How does the EU’s European Court of Justice fit into this scenario? Is there a possibility of conflict between the ECJ and the ECtHR? How would such a conflict be resolved? Can the judgments of one court be considered superior to the other court? If so, which one is superior?