By Juš Černovšek, Lawyer, Slovenia.

The Court of Justice of the European Union has ruled that the draft agreement on the accession of the European Union to the European Convention on Human Rights (ECHR) is not compatible with EU law. The ruling deals a blow to efforts trying to make the Union accede to the ECHR as the Lisbon Treaty requires. So what does this mean for the process of accession and what would accession actually bring to the European Union? This article deals with this important question and also the main issues that stand in the way of the accession.

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With the Treaty of Lisbon the accession did not only become a right but also an obligation. The Treaty of Lisbon amends the current EU treaties, without replacing them. It provides the Union with the legal framework and tools necessary to meet future challenges and to respond to citizens demands.[1]

Essential for the accession are the amendments made by the Lisbon treaty to the Article 6(2) of the Treaty of European Union (TEU) which now creates an obligation that the European Union “shall accede”[2] to the Convention for the Protection of Human Rights and Fundamental Freedoms of 4th Novem­ber 1950.[3]

But just the validity of the Treaty of Lisbon alone does not mean that the accession will be undisturbed and easy as there are a lot of institutional, procedural and substantive issues left to be resolved. These issues have a significant impact on the potential success of the agreement.

Particularly two institutional issues appeared as problematic. The one judge per party rule and the right to an EU representative on the Council of Europe’s Committee of Ministers.

a.) The one judge per party rule:

is the right of EU to their own judge at the European Court of Human Rights (ECtHR), who would be the 48th judge of the ECtHR. This way the EU would enjoy the same rights that all the other signees of the Convention enjoy. The question in doubt is particularly the mandate of the judge. There were two options discussed. According to the first option the mandate of the judge would be similar to the mandate of all the other judges, while the second option assumed a little more limited mandate which would mean that the EU judge would only decide in cases that are connected to EU law.[4] The latter option was heavily criticized as it would violate judicial independence and it would be impossible to incorporate since it should always be decided if the particular application is in connection with EU law. This would not be according to the idea that the EU will accede to the Convention as an equal partner to all the other members. So it was decided that the EU judge should have the same mandate as all the other judges.

b.) EU representative on the Council of Europe’s Committee of Ministers

The Committee of Ministers of the Council of Europe is empowered to perform various tasks. Pe­rhaps most significantly, it monitors respect of com­mitments by the contracting parties and supervises the execution of the ECtHR’s judgments. The European Commission naturally argued in favor of having a re­presentative sitting on the Committee of Ministers but non-EU countries were concerned that the EU and its Member States may seek to coordinate their votes and hence control – and block – the proceedings within the Committee of Ministers.[5]
The agreement saves this problem with a compromise and the article 7 states that EU is allowed to be represented in the Council and that it has a right to vote in certain situations.

Substantive issues include future of the Bosphorus test, accession to ECHR protocols and autonomy of the EU law.

a.) Future of the Bosphorus test

Considering the jurisprudence of the ECtHR, the Bosphorus case[6] is the leading decision that concerns the relationship between the EU and ECHR. In a few words, the ECtHR made clear in Bosphorus that it had the jurisdiction to review applications directed against national measures that directly or indirectly imple­ment or derive from EU law obligations. In doing so, the ECtHR gave itself the power to indirectly review the compatibility of EU acts with ECHR standards. The ECtHR default position, however, is that the EU protects fundamental rights in a manner that can be considered equivalent to that for which the ECHR provides and that it would abstain from exercising its jurisdiction in cases where a Member State had no discretion in implementing its obligations under EU Law..  The Court decided that if the state does not have a discretion over the enforcement of EU law the so called »equivalent protection test« comes in consideration. This pre­sumption would be in place for as long as the EU offers substantive guarantees and a controlling mechanisms that are equivalent to those provided by the ECHR and unless there was a manifest deficit in the protection of­fered by the EU in the concrete case before the ECtHR.[7]

The draft agreement is silent on the future of the Bosphorus test. This means that it has neither explicitly confirmed nor overruled the equivalent protection test, or clarified whether it should in fact be extended to all EU-related cases. It will therefore be for the Strasbourg Court to ultimately decide whether it should continue to apply a low standard of judicial review in situations where Member States adopt measures that merely implement legal obligations flowing from EU membership. [8]

b.) Accession to the ECHR protocols

Some members of the EU (especially UK) were worried that the accession would automatically bind all the EU member to every protocol regardless if the ratified it or not. That is not the case, since the agreement only states that the EU will accede to the protocols that were already ratified from all EU member states, this is Protocol number 1 and Protocol number 6.

c.) Autonomy of the EU legal order

The biggest obstacle for the international agreements is the autonomy of the EU legal order.

»Interpretative autonomy” signifies that only the institutions of the particular legal order are competent to interpret the constitutional and legal rules of that order. This could be seen from the Opinion of the ECJ where the Court held that the EU had no competence to enter into an international agreement that would permit a court other than the ECJ to decide on the allocation of powers between the EU and its Member States or make binding determinations about the interpretation or validity of EU Law. [9]

This made it clear from the start, that EU does not have the power to enter an accession agreement that would challenge the autonomy of the EU legal order or influence the power of European institutions. This means that ECtHR cannot gain the jurisdiction to interpret the treaties of EU and the power to make binging decisions about the validity of EU law.

Procedural issues mainly deal with the correspondent mechanism.

Currently, individuals cannot challenge EU laws and practices at the ECtHR in the same way that they can challenge national laws and practices. However, individual EU member states can be – and have been – held accountable in Strasbourg for putting into practice decisions agreed at the EU level.[10] That means that in the absence of EU accession to the ECHR, the com­patibility of EU acts with the ECHR cannot directly be challenged before the ECtHR for the simple reason that the EU is not a contracting party to the ECHR.[11] The correspondent mechanism would fix the situation and give EU the right to join in the proceedings before the ECtHR against the Member state in a case where the Court is deciding on the validity of EU law in compliance with the Convention.

The co-respondent mechanism helps us to avoid a determination by the Strasbourg Court of who must be held responsible for a violation under the EU Treaties since both will be held responsible alongside one another in case of a conviction.

To conclude I think that accession would ensure a legal certainty between different sources that regulate the human rights in the EU, which would lead to a harmonization and unification of them. The wish and vision is that these rights become universal. There are a lot of obstacles in front of us but the accession is turning out to be a vital project for the EU and the effort that might be put in will in the end be worth it, since we can confidently say that the relationship between the Convention and the EU will be the one that leads the development of European law and its culture.

[1] http://ec.europa.eu/archives/lisbon_treaty/glance/index_en.htm, accessed on 30. 1. 2015

[2] Consolidated versions of the Treaty on European Union and the Treaty on the Functioning of the European Union, C115/1, 9. 5. 2008

[3] Groussot Xavier, Lock Tobias, Pech Lauren, EU Accession to the European Convention on Human Rights: a Legal Assessment of the Draft Accession Agreement of 14th October 2011, page 3, Foundation Robert Schuman, 7. november 2011, page 1, http://www.robert-schuman.eu/en/doc/questions-d-europe/qe-218-en.pdf

[4] Tobias Lock, EU Accession to the ECHR: Implications for the Judicial Review in Strasbourg, DAAD/Clifford Chance Lecturer at the Faculty of Laws, University College London, 2010, http://epubs.surrey.ac.uk/266016/1/Article-ELR-%20EU%20Accession%20to%20the%20ECHR-Implications%20for%20%20the%20Judicial%20Review%20in%20Strasbourg.pdf

[5] Groussot Xavier, Lock Tobias, Pech Lauren, EU Accession to the European Convention on Human Rights: a Legal Assessment of the Draft Accession Agreement of 14th October 2011, page 3, Foundation Robert Schuman, 7. november 2011, page 1, http://www.robert-schuman.eu/en/doc/questions-d-europe/qe-218-en.pdf

[6] C-84/95, Bosphorus v Ireland, 1996

[7] Kuhnert Kathrin, Bosphorus – Double standards in European human rights protection?, Utrecht Law Review, leto 2, številka 2, december 2006

[8] Groussot Xavier, Lock Tobias, Pech Lauren, EU Accession to the European Convention on Human Rights: a Legal Assessment of the Draft Accession Agreement of 14th October 2011, Foundation Robert Schuman, 7. november 2011, http://www.robert-schuman.eu/en/doc/questions-d-europe/qe-218-en.pdf

[9] Opinion no. 1/91 [1991] ECR I-6079

[10] http://www.euractiv.com/sections/eu-priorities-2020/court-justice-rejects-draft-agreement-eu-accession-echr-310983

[11] Groussot Xavier, Lock Tobias, Pech Lauren, EU Accession to the European Convention on Human Rights: a Legal Assessment of the Draft Accession Agreement of 14th October 2011, Foundation Robert Schuman, 7. november 2011, http://www.robert-schuman.eu/en/doc/questions-d-europe/qe-218-en.pdf

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