Friday 30. July 2021
#180 - March 2015


EU and Council of Europe: further integration of human rights systems hits a snag


President Jean-Claude Juncker made the completion of EU accession to the European Convention on Human Rights one of the 2015 Commission priorities. The EU Court of Justice added an unexpected twist to a perhaps only too predictable script.

The EU Court of Justice recently issued a negative opinion on the draft agreement on the accession of the EU to the European Convention on Human Rights. The process deserves both explanation and attentive reflection.


EU and Council of Europe: both concerned with human rights

The Council of Europe and the European Union each have their own elaborate systems in the area at issue.


The Council of Europe has 47 Member States, among them Turkey, Russia and Switzerland. Its system is based on the European Convention for the Protection of Human Rights and Fundamental Freedoms, the respect for which is ensured by the European Court of Human Rights, based in Strasbourg.


The EU system is mainly founded on the Charter of Fundamental Rights of the EU. This text is the benchmark for all EU initiatives as far as fundamental rights are concerned (as well as for its Member States when they implement Union law). It is ultimately up to the European Court of Justice, located in Luxembourg, to make judgments regarding the respect of the EU Charter and its interpretation.


It is to be noted that a number of rights already have the same formulation in these two legal contexts (e.g. right to life, respect for private and family life): in this regard, the EU Charter states that insofar as the Charter itself contains rights which correspond to those guaranteed by the European Convention, their meaning and scope must be the same as those laid down by the said Convention. Furthermore, there already exists interaction between the two levels: for instance, according to Article 6(3) of the Treaty on the European Union, fundamental rights, as guaranteed by the European Convention and as they result from the constitutional traditions common to the Member States, constitute general principles of the Union's law.


With the accession, the EU would become a signatory to the European Convention, thereby making the Strasbourg Court responsible for the external control of acts, measures or omissions of the EU with regard to the respect for the Convention itself.


Impact and benefits of the accession

Cutting through the technicalities and the legal details, what does the accession mean, in concrete terms, for European societies? Any person, NGO or group of individuals would have the right to submit the ‘acts, measures or omissions’ of the EU to the external control of the Strasbourg Court, which would carry out this control in the light of the provisions of the European Convention. This means, in short, greater accountability of the EU towards its citizens and a further incentive for the EU to strive to fully respect fundamental rights.


Until now, this could happen only with national acts or omissions of defendant Member States’ bodies; in a number of cases Strasbourg decisions have led to an impact on national jurisprudence and/or legislative debates in the Member States. With the accession, similar phenomena could affect the European Union as well.


More generally, the process should make human rights protection and interpretation across Europe more coherent and harmonious.


The why’s behind the “No” of the European Court of Justice

In its negative opinion, the EU Court concludes that the draft agreement for the EU accession to the European Convention is not compatible with EU law. The opinion considers as problematic a number of technical provisions inserted in the text.


The Court underlines, first of all, that the draft agreement does not include any provision to allow for coordination between the Council of Europe Convention and the EU Charter.


Secondly, the Court considers that the draft agreement bluntly equates the European Union with a State, in contrast to the intrinsic and specific nature of the EU.


According to the opinion, the draft agreement could moreover endanger the EU Court’s role in deciding on the interpretation or validity of EU law.


Even the division of powers between the European Union and its Member States, according to the opinion, could be ‘adversely affected’ by the draft agreement and the list of reservations expressed by the EU Court could continue with even more technical remarks.


A process that deserves to be supported

In its contribution to the consultation on the future of EU justice policies (2013), the COMECE Secretariat emphasised that acknowledgement of the importance of maintaining the momentum for the EU’s accession to the European Convention on Human Rights should be widely shared, especially for the positive opportunities it will offer EU citizens with regard to compliance of the EU with the Convention itself. On that occasion it was also stressed that, already in the context of the consultation on the draft Charter of Fundamental Rights of the European Union (2000), the COMECE Secretariat had supported the accession of the EU to the European Convention as a rational solution and had pointed out that “...the protection of fundamental rights in the European Union cannot be considered as complete as long as the Union is not a signatory to the European Convention on Human Rights and Fundamental Freedoms”.

Rigour is welcome, but the process must not stop

It is important to see in this process the opportunities it can offer to EU citizens and European societies at large, rather than read it exclusively in the light of concerns related to the - at times questionable - positions the Strasbourg Court has taken in the past on some delicate cases.


The negative opinion of the EU Court will lead to a slowing down of the relevant process, already characterised by marked complexities. Needless to say, the delay caused will have an impact on European citizens, as a further enhancement of the protection of their rights “will have to wait”. On the other hand, one has to remember that in Europe things are by no means at ground zero with regard to human rights protection (a European Convention, to which all EU Member State are signatories, a relatively new and modern EU Charter and national Constitutions that ensure high standards). This provides an abundantly sufficient back up for reaching the final goal of accession without any ‘neurosis’: time and patience are necessary to put in place, with quasi-surgical precision, the right mechanisms, so as to prevent any traumatic consequence either at the EU or the Council of Europe level. The tone and the contents of the EU Court opinion also reflect the sheer intricacy - and, in a way, ‘explosiveness’ - of the accession operation. The process can open up exciting perspectives, but it touches upon some of the pillars of the Union. This means that the EU cannot nonchalantly rubber-stamp the relevant texts and procedural steps.


Having said this, it would be a crying shame were the process to get bogged down merely because of a power struggle between the two Courts involved. The next few months will be decisive in ensuring a renewed impulse to the endeavour.


Alessandro Calcagno


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