Hot off the press: how the ECtHR is indeed going to watch the EU

8 April 2013 by


Last Friday, 5 April, saw a break-through in negotiations as to how the EU is to accede to the ECHR – see the Draft Agreement on Accession of the European Union to the European Convention on Human Rights. There has been a lot of speculation (e.g.  my post of June 2012) about how the roles of the EU Court (the CJEU) and the Strasbourg Court might be fitted together.  Now at least we have some of the proposed answers, though there are a number of formal steps to be undergone before it comes into law.

The move is a culmination of a process trailed as long ago as the 1970s, though kick-started more recently by  Article 6 of the Lisbon Treaty of European Union. This entered into force in 2009, and says that the EU “shall” accede to the ECHR. Negotiations started in earnest in 2009/10, initially with negotiators from 14 Convention countries (7 in the EU, 7 ECHR but non-EU members) who met with members of the European Commission, and latterly involving all 47 Council of Europe countries. Those negotiators have now reached agreement.

The draft Accession Agreement is highly technical, but the key bits seem to be these. An individual applicant may take the EU as well as a Convention country to the Strasbourg Court under the ECHR. So someone may say that an act of the European Commission offended his Article 6 fair trial rights, and may also complain that his country was also to blame for this same human rights violation. The EU may also become a party, where the alleged violation in the case calls into question the compatibility of an EU law with a Convention right.

This means that the Strasbourg court will be scrutinising not only EU acts (say a dawn raid in a competition case in breach of Article 8) or omissions but also EU laws for human rights compatibility. So the ultimate decision will rest in Strasbourg not with the CJEU in Luxembourg.

The draft Agreement then tries to resolve potential conflicts between the ECtHR in Strasbourg and the CJEU in Luxembourg. Strasbourg decisions involving the EU as a party will be binding on EU institutions, including the CJEU (see [26] of the draft Explanatory Report attached to the Draft Agreement. But where the CJEU has not yet assessed the compatibility between the EU law and the ECHR, then, in the words of a proposed amended Article 36 of the Convention:

“sufficient time shall be afforded for the [CJEU] to make such an assessment, and thereafter for the parties to make observations to the [Strasbourg] Court. The European Union shall ensure that such assessment is made quickly so that the proceedings before the [Strasbourg] Court are not unduly delayed. The provisions of this paragraph shall not affect the powers of the [Strasbourg] Court.”

But this assessment by the CJEU will not bind the Strasbourg Court, though plainly it will be highly persuasive. The EU will also get its own Strasbourg judge, just like all the member states.

The Accession is to apply to the ECHR itself and to additional Protocols 1 (including rights to property and education) and 6 (abolition of the death penalty in times of peace) upon which there is EU consensus. Other Protocols have to date not been ratified by all EU member states, and are not therefore to be subscribed to by the EU.

What next?

The press release of the Council of Europe refers to this draft agreement as a “milestone reached”. Secretary General Thorbjørn Jagland talks about “a decisive step” contributing to “the creation of a single European legal space, putting in place the missing link in the European system of fundamental rights protection”.

But there is still a lot to be done before it comes into force:

(1) the CJEU will be asked to give an opinion on the legality of the proposed terms of accession as a matter of EU law – will it be happy in not being top legal dog any more when there is an overlap of jurisdictions?
(2) the EU will have to come up with its own internal rules as to how it is to function as a party to the Convention – the Commission has not yet come up with its formal proposal for these
(3) the Council of the European Union – i.e. the states representatives from 27 all EU states – will have to adopt unanimously the decision authorising the signature of the Accession  – so will UK domestic politics (Theresa May and all that) get in the way of our signature?
(4) All ECHR state parties (including the other 20 non-EU countries) will then have to ratify these amendments to the Convention.
So don’t get drafting your applications against the EU just yet.
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1 comment;

  1. ObiterJ says:

    No matter what the Lisbon Treaty stated, I cannot see the present British government being happy with this though, of course, you never know! Although I am open to persuasion, it seems an unnecessary step. Human Rights are supposed to be protected by States. Thus, when States are dealing with the EU, the human rights considerations ought to play a prominent role in the arguments put forward by States. Further, the CJEU already recognises the E Conv HR. Just why is this additional complication needed? What are the gains for me as a citizen?

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