Posted on 06 December 2011.
In this third and final article about legal integration in Europe the subject is the EU’s forthcoming accession to the ECHR. Those not already familiar with the organizations in question – the European Court of Human Rights, the Council of Europe and the European Union – are advised to read the two previous articles (here and here) in this series.
At the time of writing final negotiations are still ongoing regarding the EU’s accession to the ECHR. Before outlining the negotiation process and the effects the accession will have, it is necessary to understand exactly who the parties are, and how they are represented at the negotiating table. In this regard it is important to keep in mind the fundamentals: the EU as an international organization is acceding to the ECHR – a human rights treaty. EU acts will therefore be subject to external judicial review by the European Court of Human Rights (ECtHR) – a treaty body under the ECHR.
Negotiations: parties and playing field
The accession agreement is to be concluded between all 47 members of the Council of Europe (CoE), on the one hand, and the EU, on the other. There is a high degree of overlap with regards to membership between the two organizations – all 27 EU members are also members of the CoE. In practice this means that those 27 states have interests on both sides of the negotiating table. As for the states involved it thus seems more like a negotiation between the 27 EU-members and the 20 non-EU members among the CoE states.
This is, however, only half the truth. Both the international organizations involved have a certain degree of autonomy, and their own interests to protect that cuts across the state interests. While the Council of Europe is not itself formally party to the negotiation, they have have provided the forum for negotiation, and provided the negotiators with a secretariat. Recognized as the “benchmark of human rights, the rule of law and democracy in Europe”, the CoE fears the development of competing human rights standards within the EU. Potentially, this could lead to a two-tier human rights protection in Europe, and put the CoE on the sideline politically. EU accession, on the other hand, would entail a submission of the Union to the ECHR standards, thus solidifying the CoE’s position as the human rights “benchmark”.
Last, but definitely not least, the European Union as an international organization with a large degree of autonomy is a key player in the negotiations. It will become one of the signatories to the accession agreement, is directly involved in the negotiations through its organs, and consists of a number of bodies and agencies staffed by persons sitting in private capacity. Despite its strong position in Europe politically, its vast resources, and the fact that it has its own human rights regime, the Union still considers the rapid accession to the ECHR as a key priority.
Historical and political reasons for accession
To understand why the Union is willing to submit itself to the external judicial review of the European Court of Human Rights – a de facto Council of Europe organ – one must look to the history of the Union. When it was conceived in the early fifties there were talks of creating formal ties between it and the already existing CoE, including an accession to the ECHR. However, the idea of a greater political Union in failed. Instead a purely economic Union was created, and human rights were left out of the original EU treaties.
However, it did not take a long time before litigants from countries with proud constitutional traditions challenged Union legislation on human rights grounds before national courts. Initially the European Court of Justice (ECJ) did not budge. It also rejected the argument that EU law contained any human rights principles.
Nonetheless, the litigants persisted, and a political solution to this conflict was not found, despite strong criticism from several angles. An accession to the ECHR was also deemed impossible at the time, due to the fact that France – a founding EU member – was not party to it. Finally, in 1969 a judicial solution as found when the ECJ gave in to the criticism by recognizing that fundamental human rights are a general principle of EU law.
While the creation of an EU system of human rights protection by the ECJ gave the Union some breathing room, it was far from the coherent and codified system of the ECHR. These rights were developed ad hoc on a case-by-case basis, and were thus hard both to interpret and apply.
Consequently, it was still plenty of room to criticize the EU’s system of human rights protection. And, ss the EU expanded its field of operations in the past few decades, the critical voices grew in numbers. The codification of the Union’s human rights principles in the non-binding EU Charter of Fundamental Rights in 2000 did not manage to turn the public opinion around. Even though the Lisbon treaty provided the Charter with binding legal effect in late 2009, the EU still lacks the hard-earned legitimacy of the ECHR. Its human rights protection is still seen as second class by many.
This has become even more pressing in recent years when the EU has expanded heavily into the area of foreign affairs. With a easily criticizable system of human rights protection at home, it is harder to push compliance with such rights toward other international actors. As a consequence, EU is keen on acceding to the ECHR as quickly as possible to tap into the success and legitimacy of the Convention system, including its Court.
Legal and technical reasons for accession
There are also more technical legal arguments for an accession, rooted in the fact that all EU members are also parties to the ECHR. This can lead to norm conflicts between the two legal regimes. Furthermore, the ECJ and the ECtHR will often have jurisdiction to deal with the same factual matters.
As a result of this, there is a real and serious risk of divergent interpretation. States could therefore be faced with a dilemma. There could potentially be situations where the national state is left to choose towards whom it should breach its obligations. Take for example an EU legal act that is incompatible with an ECHR right: Should the state prioritize human rights, and face the wrath of the Commission at the ECJ? Or should it uphold EU law, and possibly face an array of individual complaints at the ECtHR?
An accession could mitigate the risk of divergent interpretations, as both courts would have a common legal framework. Furthermore, the ECtHR is to become a court of external judicial review in relation to the Union – comparable to that of a national constitutional court. This will make it possible to solve instances of divergent interpretation. With the formal ties in place, there is little doubt that the ECJ will follow the ECtHR’s jurisprudence. If not, the Union would loose face, and incur international responsibility in the ECtHR, something it seeks to avoid at all costs.
Another more technical reason in favor of accession is the need for correct attribution of responsibility between the EU and its member states. At present it is possible for individuals to challenge national acts taken in compliance with EU law before national courts. These cases can, and do, end up in the ECtHR as a case between the individual and the EU member state implementing an EU act.
While the ECtHR has held that the EU cannot be brought before it due to it not being a party to the Convention, it has insisted that the national states in principle retain responsibility for the sovereign powers transferred to the Union. The consequence of these statements of principle could potentially lead to the ECtHR finding a national state responsible for implementing EU acts, regardless of the fact that it is obliged to implement it, and may not even have voted in favor of it.
An accession would make it possible to allocate responsibility correctly. If the violations is inherent in the relevant EU legislation, then the Union will be found responsible. On the other hand, if the EU legislation provides the member states with a margin of discretion wide enough to enable human rights-compliance, they will be held responsible for any non-compliant implementation.
Finally, an accession would make it possible to bring human rights cases that does not involve national acts before the ECtHR. This would include the cases there EU organs have acted directly. Examples include labor disputes, and enforcement of European competition law.
The above-mentioned reasons has made accession a pressing issue for the Union. As soon as the legal basis for such an accession was firmly in place,[TEU art. 6(2), ECHR art. 59(2).] negotiations began in the summer of 2010. The negotiations took place in the context of a CoE working group, which presented a draft Accession Agreement a year later, in summer 2011. It was then expected that the negotiations would be formally concluded within a couple of months.
However, during a CoE meeting in October the British and French delegations raised objections against the negotiated draft. This halted the negotiations while the 27 EU member states try to iron out their differences. This process is ongoing, and despite the initial protests by the French and the British, it seems like an agreement will be reached on the final details within a relatively short amount of time.
Upon agreement by the EU countries there will be another round of negotiations between the 27 EU members and the 20 non-members. After that the ECJ, and possibly the ECtHR, will be asked to give their opinions on the draft. It is not given that the ECJ will accept that the ECtHR encroaches upon its exclusive jurisdiction and the Union’s autonomy. But, it is hard to guess what the ECJ will decide, as its case-law regarding treaty-made external judicial institutions is somewhat confusing. I will thus not venture further into this topic, as it would require an article of its own.
On the other hand, if the court opinions are indeed positive, the draft will be adopted, and opened for signature and ratification by all 47 CoE member states, as well as the EU.
The Accession Agreement – solutions and new issues
The current drafts puts great emphasis on the principle that the EU will become a party to the ECHR on an equal footing with the states parties to the Convention. Thus, the EU’s accession will resolve many of the problems outlined above.
However, as two complex international legal orders are to be integrated, difficulties are bound to arise. To give the readers of The View From Above a taste of what’s to come, I will deal with one of the issues arising in connection with the ECtHR’s review of EU acts.
In order to say something about judicial review by the ECtHR over EU acts following accession, we must look to the present situation. As mentioned above, the ECtHR is capable of reviewing national acts implementing Union law. Nevertheless, such review has been severely limited. Thus, when implementing Union acts, the national states are given a significantly broader margin of appreciation than otherwise.
This is the result of the three-step test the ECtHR applies in these cases. First, it considers that the Union as a whole provides an “equivalent protection” of human rights, while underlining that equivalent means comparable, not identical. Second, it adds that when such equivalent protection is provided by the EU, there is a presumption that the state in question has not departed from the ECHR’s requirements “when it does no more than implement legal obligations flowing from its membership of the organisation”. Third, this presumption may only be rebutted if the protection of the ECHR rights in an individual case is “manifestly deficient”.
The ECtHR’s rationale for this three-step test is not crystal clear. It seems to be an attempt to balance the “growing importance of international cooperation and of the consequent need to secure the proper functioning of international organisations” with the importance of human rights compliance. However, it might just as well be seen as an non-principled attempt to avoid an open conflict with the ECJ.
As the accession of the EU to the ECHR is to be primarily based on the equal footing principle, it seems likely that this doctrine will be scrapped. If the Union is to be seen as an equal contracting party, there is no reason for the ECtHR to provide it with a large margin of appreciation. This must at least be clear for cases where the Union participates in the proceedings. Here the rationale is without basis following an accession.
But, what if the Union does not join the proceedings? This will, at least in theory, be possible under the latest draft Accession Agreement. It ultimately leaves it to the Union’s free will if it wants to join a case against an EU member state pending case before the ECtHR that involves Union law. If the Union does not, the ECtHR would have a hard nut to crack.
Should it perform a full scrutiny of whether EU law is compatible with the ECHR, and attribute the responsibility to the member state that happened to be chosen by the individual applicant as respondent in that case? Should it rather dismiss the application, as it concerns the act of another High Contracting Party – namely the Union – than the one chosen as respondent? Or should it use the three-step test outlined above?
There is no clear cut answer to this question. Neither does it seem likely at the present time. As long as the Union is still set on enhancing its image in the field of human rights, it is highly unlikely that it would refuse to join such proceedings. However, it is given that the tide will turn. A non-cooperative Union would put serious strains on the ECtHR’s judicial review.
No accession without difficulties – and no coherence without accession
As should be obvious from the above, the EU’s accession to the ECHR can be equated with the opening of Pandora’s famous box. Nevertheless, these difficulties seem to be necessary in order to create an integrated and coherent human rights framework in Europe.
Furthermore, the current state of affairs is neither coherent nor easily understandable. Even if it might lead to some difficulties, it should be possible to iron those out, as there will be a formal link between the two courts. Hopefully, the end result will be easier to grasp for laypeople than the complex, multi-layered and fragmented system of human rights protection we have in Europe today.