The European Parliament Committee on Civil Liberties, Justice and Home Affairs (LIBE) debated on February 23rd the state of the play of the EU accession to the European Convention of Human Rights (ECHR).
The accession is imposed by Article 6 TEU and its main impact will be the creation of an additional layer of protection of fundamental rights in the EU legal order. This entails the possibility to challenge before the European Court of Human Rights (ECtHR) also EU acts if they breach the fundamental rights of an individual (see my previous post here).
One could consider this new layer of protection as unnecessary, notably after the entry into force of the Charter of Fundamental Rights of the European Union (hereinafter referred to as the Charter), which already mirrors and develops the content of the ECHR in the EU (covering also other fundamental rights such as the social rights). However, as explained in another post, there are still situations where an individual would encounter serious difficulties challenging before a national court or even before the European Court of Justice (ECJ) a EU act which affect his/her rights. Should the EU accede to the ECHR, after the ruling by the ECJ on a EU act, the individual concerned could still challenge the same act before the ECtHR if he considers that his fundamental rights have been breached.
As already highlighted by Vassilious Skouris President of the ECJ during a LIBE hearings in 2005 and 2007, when the protection of fundamental rights of a person is at stake, the ECtHR has the final word and even the ECJ will be in a position comparable to the one of the national Constitutional Courts when faced with Strasbourg case law.
It goes without saying that the judgments of the ECtHR will remain of a declaratory nature and will not become self-executing as it is the case in the national or in the EU legal order for the judgments of the ECJ or of the national Constitutional Courts. It will be the responsibility of the State concerned (or ofthe EU itself when it will become party to the ECHR) to take the initiatives needed to restore the right of the person involved in the case submittedbefore the ECtHR.
Some outstanding issues
Bearing in mind the above as well as the comments of scholars and experts active in the field, it can reasonably be assumed that the EU accession to the ECHR will not be an easy task as it will require a common understanding of several points such as:
a) the scope of EU accession (whether by the same process the EU should also accede to the Additional Protocols to the ECHR ratified by all Member States; what status will be given to national derogations/reservations);
b) the need to achieve coherence between the Charter and Article 52(3) of the ECHR (same meaning and scope of corresponding rights), to establish a clearer link between the two instruments and to preserve the ECHR as a minimum standard of protection;
c) the need to address the relations between the ECJ and the ECtHR (preservation of the monopoly of the ECJ for the interpretation of the EU Treaties; relationship between the two Courts). Taking into consideration Article 55 of the ECHR, it would be appropriate to clarify that the competences of the ECJ will remain unaffected. By the same token, Member States should address the cases where diverging case law between the ECJ and the ECtHR could appear. Procedures should be developed to strengthen the dialogue between the two Courts;
d) verifying the suitability of a “co-defendant mechanism” allowing the joint participation of the EU and of the EU Member States concerned (to avoid the situation where Member States alone bear the duty to defend the EU law’s conformity with the ECHR). In this context it could be useful to define a mechanism indicating who should be considered the defendant in cases where the alleged breach of fundamental rights concerns national measures implementing EU law .
If the choice of the defendant was given to the ECHR there is a risk that the ECtHR will be compelled to also define the question of the distribution of competencies between the EU and its Member States. To avoid this situation the EU should define a mechanism (eventually with the contribution of the ECJ) by which it should be clear whether the EU or the Member State should be the defendant (see a similar situation as described in Annex IX, Article 6 of the Law of the Sea Convention);
e) the preservation of the EU competences, of the distribution of powers between the institutions as well as between the Member States and the institutions (in principle the ECtHR Judges does not challenge the internal legal order of the parties to the ECHR but it is well known that some EU Member States and the members of the ECJ are afraid that this could happen);
f) the manner in which the EU will be represented and will participate in the bodies of the ECHR and of the Council of Europe (e.g. designation by the EU of a judge at the ECtHR; observer to the Council of Ministers, participation in the Parliamentary Assembly);
g) the need for prompt and full implementation of the judgements of the ECtHR (need for specific mechanisms and procedures), need to enhance the authority and direct application of the Court’s findings in domestic law;
h) the clarification concerning the fact that by becoming party to the ECHR the EU will not become a member of the Council of Europe. Therefore, a non “affectation clause” could be tabled according to which both the rights of the Union and the rights of the Member States in the Council of Europe will not be impaired on account of the EU’s accession to the ECHR.
From a more general stand a big question mark concerns the position towards the EU of the states parties to the ECHR which are not EU Member States (such as Turkey, Russia, etc) which will probably take this occasion to make some political pressure on the EU.
State of play of the preliminary works
Bearing in mind the questions raised above it is easy to understand why, even if some preparatory works started immediately after the entry into force of the Lisbon Treaty (December 1st, 2009), the negotiation mandate of the EU is still in the preparatory phase.
Such a mandate is an essential step to launch the negotiation procedure as described by Article 218 TFEU. The procedure itself will require the consent of the European Parliament and in the specific case of the EU accession to the European Convention also unanimity in the Council as well ratification by all national Parliaments (contrary to the ordinary rule of qualified majority without ratification by national Parliaments).
At first sight it could look as a “mission impossible” but one should bear in mind that the ratification of all the 27 Member States is required in any case since all the EU Members States are already members of the ECHR and shall in this capacity and together with the other 20 non EU countries who are parties to ECHR, ratify the EU accession (NDR: ..a rather interesting legal situation of “double sided” ratification process).
Apart from these procedural aspects, several other issues have already been discussed between the Member States as it summarized in a Council Presidency document .(*) The European Commission itself has also shown at the end of 2009 a strong commitment and it is more than likely that the newly appointed Vice President Reding will now take the political lead of this dossier as she has announced at the Interlaken Conference on the reform of the European Court of Human Rights .
The current contributions are now focusing on Protocol 8 (**) of the Lisbon Treaty which, by echoing some concerns raised in the ’96 ECJ opinion (2/94), states that the future agreement “.shall make provision for preserving the specific characteristics of the Union and Union law, in particular with regard to:
(a) the specific arrangements for the Union’s possible participation in the control bodies of the European Convention; and (b) the mechanisms necessary to ensure that proceedings by non-Member States and individual applications are correctly addressed to Member States and/or the Union as appropriate.”
Point a) is a clear reference to the need of a specific European Union judge. This is coherent with the logic of the ECHR where all the specificities of the national legal orders should be represented; by appointing a EU judge also the national judges will then be made aware of the specificities of the EU legal order. One question to be dealt with will be the powers of this judge as the EU competencies are not general like the ones of a state. Therefore, the question whether he can have a deliberative role also in cases which do not fall into the European Union competence is open. On the appointment procedure as Article 22(1) of the ECHR requires that “..The judges shall be elected by the Parliamentary Assembly with respect to each High Contracting Party by a majority of votes cast from a list of three candidates nominated by the High Contracting Party ” it should be decided by which institution should designate the three EU candidates (e.g.: Council, European Parliament, ECJ )
Another question under analysis concerns the participation by a EU representative in the Council of Europe Committee of Ministers, which according to Article 14 of the Council of Europe Statute surveys the execution of the ECHR judgments (it is worth noting that a European Commission representative already takes part without right to vote to the Council of Europe Committee of Ministers).
….to be followed
(*) Contributions have already been submitted by the German delegation as well by the UK (Council doc. 6644/10 but the text is not directly accessible to the public).
(**) PROTOCOL N.8 RELATING TO ARTICLE 6 (6) OF THE TREATY ON EUROPEAN UNION ON THE ACCESSION OF THE UNION TO THE EUROPEAN CONVENTION ON THE PROTECTION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS
THE HIGH CONTRACTING PARTIES,
HAVE AGREED UPON the following provisions, which shall be annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union:
The agreement relating to the accession of the Union to the European Convention on the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as the “European Convention”) provided for in Article 6(2) of the Treaty on European Union shall make provision for preserving the specific characteristics of the Union and Union law, in particular with regard to:
(a) the specific arrangements for the Union’s possible participation in the control bodies of the European Convention;
(b) the mechanisms necessary to ensure that proceedings by non-Member States and individual applications are correctly addressed to Member States and/or the Union as appropriate.
The agreement referred to in Article 1 shall ensure that accession of the Union shall not affect the competences of the Union or the powers of its institutions. It shall ensure that nothing therein affects the situation of Member States in relation to the European Convention, in particular in relation to the Protocols thereto, measures taken by Member States derogating from the European Convention in accordance with Article 15 thereof and reservations to the European Convention made by Member States in accordance with Article 57 thereof.
Nothing in the agreement referred to in Article 1 shall affect Article 344 of the Treaty on the Functioning of the European Union.