The Autonomy of the European Union and its Accession to the European Convention of Human Rights.

Article 6.2 of the Treaty of Lisbon creates a legal obligation for accession to the European Convention on Human Rights.(ECHR) 1 This mechanism was originally established to achieve a coherent framework of human rights protections in Europe. The obligations proposed in the Lisbon Treaty would create a single European legal space to achieve substantial human rights protections across the continent. 2 The relationship between the Convention and the European Union has been fraught. The two systems are inextricably intertwined yet also very different. Negotiations regarding the EU's accession  to the ECHR began in June 2010, 3and continued for three years until April 2013; however, in December 2014, the Court of Justice of the European Union (CJEU) declared that the EU's proposal for an extension to the ECHR  was incompatible with the treaties of the European Union. 45  

The Council of Europe adopted both the ECHR and the Charter of Fundamental Human Rights. It is of course, essential to note that the Council of Europe is a distinct organisation from the European Union, consisting of 46 member states, whose core principles and values include the promotion of democracy, the protection of human rights and the promotion of the rule of law across Europe.6 The ECHR is a stand-out human rights treaty in international law, mainly because it is one of the only international treaties with a court attached. 7The CJEU  has continually drawn inspiration from the ECHR. The ECHR has been held as a document of particular importance for the European Union, and the CJEU has often looked to the jurisdiction of the European Court of Human Rights (ECtHR) in interpreting fundamental rights. 89 

Although the ECHR is mentioned in numerous treaties adopted by the EU and has been applied throughout the case law of the CJ EU, the EU is not a party to the ECHR. This raises serious legal and political issues that are in dire need of improvement for the sake of human rights law across the continent. 1011 The Treaty of Maastricht in 1992 restated the centrality of the ECHR at the union level.12 Unfortunately, Maastricht excludes the jurisdiction of the ECtHR, which is fundamentally attached to the ECHR and is one of the only international courts with the mandate of human rights protection.13 Due to the fact that the EU is not a party to the ECHR, two circumstantial difficulties have arisen.14 In cases where challenged acts have arose where national authorities are implementing union law but have discretion on the precise method of incorporation, the jurisdiction of the ECtHR does not concern the EU but rather what the member state has autonomously decided to do. Perhaps the simpler of the two circumstances, the application of the ECHR in such cases does not concern union law and is, therefore, irrelevant.15 However, if the act challenged is one that was mandated by EU law, tension is created between the ECHR and the EU. One of the primary purposes of the ECHR is to create a safety net for human rights protection in Europe. The sphere of individuals is affected directly by actions carried out to implement mandatory EU laws such as directives or regulations, and tension is heightened, as the European Union is not a party to the convention. However, it would be inconsistent with the purpose of the ECHR to allow member states that are party to the convention to pierce through the protections the convention provides when carrying out mandatory EU law.16 This very matter was discussed in the case of M &co v Germany,1990. 17 The authorities were enforcing mandatory EU law when the plaintiff argued that their human rights were being breached in this case. The main issue in this case is related to the compatibility of EU law with the Convention. 18 It was argued that the ECHR was applicable and that the ECtHR has jurisdiction in this case because the obligations imposed by the ECHR do not just cease to exist because the authorities were giving effect to a decision of the European Commission. Allowing parties to do so creates a loophole in convention law, and it would be too easy for contracting parties to evade their obligations. However, this line of argumentation was rejected in court. Article 1 of the ECHR places the responsibility on member states for any violation of the Convention, whether it is a consequence of domestic or international law.19 The union system secures compliance with fundamental rights. However, requiring member states to check whether rights under the Convention have been respected in each and every case would be contrary to the very idea of fundamental EU law.20 

The seminal case in this area, of course, that of Matthews V United Kingdom, has established the necessity for comprehensive fundamental rights protection.21 It was argued that a member state could not be held liable for a violation arising from a collective act of the states of the European Union as it was unable to amend that act has been rejected. The acts of the European Union are not subject to the scrutiny of the ECtHR as the union is not a contracting party to the convention. Gaps in fundamental rights protection across Europe are intolerable.22 When the CJEU is unable to protect such fundamental rights, the ECtHR will hold member states collectively responsible for violating convention rights to which they are party to. Furthermore, it was established in the case of Bosphorus v  Ireland that even when the CJEU has jurisdiction, the review of the ECtHR is not excluded, and the ECtHR will only refrain from exercising its jurisdiction to the extent to which the relevant organisation is considered to protect fundamental rights to a level that is at least equivalent to that for which the European Convention provides.23 Essentially, the safety provisions outlined in the ECHR remain in place even if the act can be ascribed to the European Union rather than to the relevant member states. 

 There is a presumption of equivalent protection of EU law with the ECHR. A series of tests were established in the case of Avotins v Latvia to determine when the ECtHR would assert jurisdiction over national authorities who were implementing mandatory rules of EU law.24 The ECtHR can only intervene if the protection afforded by EU law has been manifestly deficient to stop the presence of equivalent protection between EU law and the ECHR decided on a case-by-case basis. 25 When protection afforded by EU law is not equivalent to that of the ECHR, the ECtHR will assert jurisdiction, as seen in Matthews. When the protection afforded by EU law is manifestly deficient in the case at issue, the court may also search jurisdiction, as seen in Bosphorus. The ECtHR also imposes a duty on national courts to ensure that protection is not manifestly deficient by examining serious complaints.26 

Unfortunately, the delayed rate of accession to the ECHR has had numerous legal consequences that thoroughly restrict the protections offered by the ECHR.27 The jurisdiction of the  ECtHR is limited to cases where claimants can refuse the presumption of equivalent protection. Furthermore, as the EU is not a party to proceedings and is not bound by convention law, the ruling of the ECtHR is not legally binding. However, it was outlined in a draft agreement that when there is an application against a member state, the union may become a correspondent if it appears that the compatibility of EU law with the convention is called into question. This provision would allow the union to become a full party to the proceedings, and therefore, rulings of the course would have legally binding powers. 28Furthermore, in applications concerning the TEU or the TFEU, member states could become correspondents in the case directed against the EU, as if a violation is found, they would have to act collectively to modify the treaty.29 

To enable the utmost protection to the individual, article 36 of the ECHR should be amended, allowing the admissibility of an application to be decided without regard to the participation of a correspondent in the proceedings.30 The individual will not be penalised for correctly identifying the EU's potential responsibility in the breach. Although there are numerous benefits to the notion of the EU becoming a party to the ECHR, it is looking less likely to succeed with each passing year. The Court of Justice objected to elements of the jurisdiction of the ECtHR, placing further obstacles in the path of accession.31  The Court of Human Rights has jurisdiction over the entire body of EU law, giving it a greater jurisdiction than the  Court of Justice over common, foreign and security policy. Article 57 of the ECHR means it is impossible to exclude the policy from the remit of the Court of Human Rights.32 Furthermore, the European Union would be treated similarly to a state party, although it is an international organisation.  To preserve the autonomy of the European Union and to allow successful accession, the mutual trust principle must be explicitly recognised in the agreement.33 For the ECHR to be successfully integrated into union law, we are waiting on a positive opinion from the Court of Justice of the European Union, as well as ratification of the convention by the European Union Parliament, as well as national parliaments. 34 

It is obvious that the benefits of accession greatly outweigh the turbulence procedures. It would allow for individual recourse against the actions of the union, as well as constituting a huge step in the process of European integration. Perhaps the greatest benefit is the fact that successful accession is a key step in creating a coherent human rights system between the Union and the Council of Europe.  

Bibliography:

1 Treaty of Lisbon amending the TEU [2007] 3 December, pp 1 - 271.

2 Catherine Barnard & S. Peers, European Union Law (3rd Edition, Oxford University Press 2020)

3 Convention for the Protection of Human Rights and Fundamental Freedoms’ Council of Europe Treaty series 005, Council of Europe, 1950, (ECHR)

4 European Parliament, ‘Completion of EU Accession The European Convention on Human Rights’ 2017

5 Opinion 2/13 on the Accession of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms, EU:C:2014:2454

6 David Harris, Michael O’Boyle, Carla M.Buckley, Harris, O’Boyle & Warbrick; Law of the European Convention on Human Rights (Oxford University Press 2023)

7 Ibid.

8 Christina Eckes, ‘ EU Accession to the ECHR: Between Autonomy and Adaptation’ [2013] The Modern Law Review Vol 76 Issue II

9 Opinion 2/13

10 Barnard ( no 2)

11 B de Witte & S Imamovic, ‘Opinion 2/13 on Accession to the ECHR: Defending the EU Legal Order against a foreign human rights court’ (2015) 40 European Law Review 683

12 Treaty on European Union (Maastricht Treaty) art G5

13 Harris (no 2)

14 Barnard (no 3)

15 Ibid.

16 Steve Peers, ‘ The EU’s Accession to the ECHR: The Dream Becomes a Nightmare’ (2019) Cambridge University Press

17 M & Co v Germany (1990) App no 13258/87(ECtHR, 9 February 1990)

18 Barnard (no 4)

19 ECHR article 1.

20 Barnard (no 5)

21 Matthews v UK (1999) App no. 24833/94 (ECtHR 18 February 1999)

22 Ibid.

23 Bosphorus Hava Tollari Turizm ve Ticaret Anonim Sirketi v Ireland (2005) App no. 45036/98 ( ECtHR June 2005)

24 Avotins v Latvia (2016) App no. 17502/07 (ECtHR 23 May 2016)

25 Barnard

26 TS Lock, ‘EU Accession to the ECHR: Implications for the Judicial Review in Strasbourg’ (2010) European Law Review Vol 35

27 Ibid.

28 Barnard

29 Eckes (no 2)

30 ECHR article 36

31 Opinion 2/13

32 ECHR article 57

33 Paul De Hert, ‘The Doctrine of Equivalent Protection: Its life and legitimacy before and after the EU’s accession to the ECHR’ (2019) Cambridge University Press

34 Ibid.