Report | Doc. 11533 | 14 March 2008
The accession of the European Union/European Community to the European Convention on Human Rights
Committee on Legal Affairs and Human Rights
Summary
The report gives clear backing for European Union (EU) accession to the European Convention on Human Rights (ECHR).
The question has been under discussion for several years and the Assembly has regularly called for such accession.
The report reiterates the arguments for accession, which include greater protection of individuals’ rights, the guarantee of a coherent Europe-wide system of human rights protection, and reinforcement of legal certainty. The Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, signed on 13 December 2007 by the heads of state and government of the EU member states, provides a legal basis for EU accession to the ECHR.
Noting that the political will for accession clearly exists within the two organisations and that the legal situation permits it, the report concludes that the declarations of intent must now be given practical effect by speedy EU accession to the ECHR.
The Committee of Ministers and the EU should immediately begin negotiations on the accession instrument. The European Parliament and national parliaments are urged to approve and/or ratify without delay the instruments necessary for accession.
A. Draft resolution
(open)B. Draft recommendation
(open)The Parliamentary Assembly, recalling its Resolution … (2008) on the accession of the European Union/ European Community to the European Convention on Human Rights, recommends that the Committee of Ministers immediately open negotiations with the European Union on the instrument of accession, on arrangements for accession and on its procedural implications, bearing in mind the specific characteristics of the European Union, so as to ensure the rapid adoption of instruments for accession.
C. Explanatory memorandum, by Mrs Marie-Louise Bemelmans-Videc
(open)1. Introduction
On
that occasion the following experts addressed the committee: Mr Francis
Jacobs, former Advocate General at the Court of Justice of the European
Communities; Mrs Florence Benoît-Rohmer, Professor at the Robert Schuman
University (Strasbourg) and Mr Olivier De Schutter, Professor at
the Law Faculty of the Catholic University of Leuven and at the
College of Europe. In addition, Mr Pieter van Dijk, member of the
European Commission for Democracy through Law (Venice Commission)
and former judge of the European Court of Human Rights (the Court),
transmitted a written contribution to the committee members. All
these experts’ particularly informative contributions have been
appended to this report. and
the Parliamentary Assembly as well as the European Commission and the European
Parliament. Although
the proposal for an EU/EC accession to the ECHR dates back to 1979,
it has gained increased political momentum over recent years. In
this context, the declaration explicitly requests Luxembourg’s Prime
Minister, Jean-Claude Juncker, to write, in his personal capacity,
“a report on the relationship between the Council of Europe and
the European Union, on the basis of the decisions taken at the summit
and taking into account the importance of the human dimension of
European construction”. “The guidelines on the relations between
the Council of Europe and the European Union”, drawn up and adopted during
the summit, urge early accession of the EU to the ECHR. Recent
reports by the Parliamentary Assembly on the state of human rights
and democracy in Europe reiterate that EU accession to the ECHR
should be regarded as an urgent priority. This provision is covered by
Article 6 of the Treaty of Lisbon amending the Treaty on European
Union and the Treaty establishing the European Community (2007). 2. Why accession?
As underscored in its final report,
the EU Convention’s Working Group II on the EU Charter and accession
to the ECHR (EU Working Group II) points out that “accession would
give a strong political signal of the coherence between the Union
and the ‘greater Europe’, reflected in the [Council of Europe] and
its pan-European human rights system”. This concern was amply acknowledged
in the Memorandum of Understanding concluded in May 2007 between
the Council of Europe and the European Union, which provides that
“Early accession of the European Union to the Convention for the
Protection of Human Rights and Fundamental Freedoms would contribute
greatly to coherence in the field of human rights in Europe”. As observed
by the Assembly, “by far the most serious lacuna surrounds the institutions
of the European Union itself, the only public authorities operating
in Council of Europe member states that are outside the jurisdiction
of the European Court of Human Rights”, although it acknowledges
that “the European Court of Justice, in its decisions, does in fact
follow the case law of the [Strasbourg Court].” The Assembly stresses that its “concern
in this matter is motivated by a desire to ensure that the inhabitants
of Europe as a whole benefit from the most effective and efficient
overall human rights protection system”. As noted by Mr Pourgourides
in his report on the state of human rights in Europe, “accession
of the EU/European Community to the Convention will serve to remedy
negative consequences arising out of such a disparate system”. In this regard, the
Committee of Ministers referred to the Warsaw Summit Action Plan,
which suggested that “early accession of the EU to the ECHR would
strongly contribute to ensuring coherence in the field of human
rights in Europe”. The Secretary General of the Council
of Europe lately recalled, and rightly so, that the “prospect of
the European Union acceding to the European Convention on Human
Rights [is] a very important development” adding that “the preparation
for accession will not be easy – it will require a great deal of
negotiation between the EU and the Council of Europe so that we
and our colleagues in Brussels need to start immediately and work
expeditiously”. This is
aggravated by the lack of external scrutiny of its own activities. Furthermore, a precondition for EU membership
is accession to the ECHR (Copenhagen criteria, 1993), and the post-accession
condition for continuous and unimpeded membership requires, inter alia, “respect for human rights
and fundamental freedoms” set out in Article 6, paragraph 1, of
the Treaty on European Union, which at a minimum includes “all rights
and freedoms guaranteed by the [ECHR]”, explicitly
referred to in Article 6, paragraph 2, of the same treaty. Despite
the imposition of the foregoing pre- and post-accession conditions,
the EU has itself not acceded to the Convention. This apparent contradiction
will be eliminated by EU/EC accession to the ECHR. In addition, accession will enable
European citizens to bring complaints against the EU institutions
directly before the European Court of Human Rights. This will
in turn provide the EU itself with the opportunity to participate as
a party in cases directly or indirectly concerning the application
of Community law before the European Court of Human Rights, thereby
enabling it procedurally to explain contested provisions. Finally, the binding effects on the EU
of any decision by the Court confirming a violation of the ECHR
will be enhanced. As a result,
accession “would confirm the European Union’s standing as a Community
based on the rule of law, and legal certainty would benefit if the
actions and decisions of the European Union institutions were subjected
to the same external scrutiny as those of its member states.” Mr De
Schutter also mentions the fact that “the accession of the EU to
the ECHR would ensure that any individual aggrieved by an act adopted
by the EC or the EU will have access to a court which will be competent
to determine whether or not that act infringes fundamental rights”.
Although he finds that the judicial protection of the individual
would be markedly improved by the provisions of the Treaty of Lisbon,
he stresses the undeniable added value of external judicial supervision
of respect for human rights and fundamental freedoms which the European
Court of Human Rights will be able to exercise after accession. Indeed, Article 220 of the Treaty establishing
the European Community (TEC) imposes the ultimate authority on the
Court of Justice as regards the interpretation of Community law. In
other words, the issue is not one of “subordination” of one court
by another, but one of specialisation. As
noted by the European Convention’s Working Group II, the Strasbourg
Court “could not be regarded as superior court but rather as a specialised
court exercising external control over the international law obligations
of the Union resulting from accession to the ECHR”. As a result, the Court
of Justice will retain exclusive competence (being the court of
last instance) in reviewing final decisions in all matters relating
to Community law. In the event that the Strasbourg Court finds inconsistencies between
Community law, as interpreted by the Court in Luxembourg, and the
ECHR, responsibility will lie on the EU, like any other Council
of Europe member state, to align regulations or their application
in a particular context with the requirements of the ECHR. The Strasbourg Court’s jurisdiction will
be confined to the determination of violations of the ECHR, which
concern only a small percentage of the cases brought before the
Court of Justice. Community law and the ECHR are in
any event based on the same values and principles regarding the
protection of fundamental human rights. In the same way as the Strasbourg
Court has a subsidiary role with regard to national courts, the
EU institutions, upon accession, will continue to bear primary responsibility
for ensuring respect for the rights enshrined in the ECHR. As noted by the former Deputy Secretary General
of the Council of Europe, Hans-Christian Krüger, “the issue here
is not subordination or primacy of courts but, rather, the submission
of final decisions on alleged violations of fundamental rights to
a uniform, specialised, pan-European body, with power merely to
verify whether Community law and Community measures are compatible
with fundamental rights”. He
rightly argues that: “the autonomy and authority of the two courts
would also be strengthened if each had the final say in its own
area of jurisdiction”. As stressed by the EU Working Group II,
“Accession would be the ideal tool to ensure a harmonious development
of the case law of the two European courts in human rights matters.” 3. The path to accession
3.1. Possibilities in the event of a modified institutional system
But
the legal possibility of accession does not depend on the treaty,
which had merely intended to facilitate it. In other words, “accession is
highly desirable while being legally possible with due regard to
the autonomy of the Community legal order and without substantially
altering the human rights protection mechanism set up under the
ECHR”. In a new Article 6, the treaty provides
that “the Union shall accede to the Convention for the Protection
of Human Rights and Fundamental Freedoms. Such accession shall not
affect the Union’s competences as defined in the Treaties”. The issue no longer arises since the Treaty
of Lisbon integrates the EC with the EU, which in effect becomes
the sole entity able to accede to the ECHR. For that reason, the
rapporteur has opted to contemplate only the accession of the EU
in her preliminary draft resolution and recommendation. Further
legal and technical amendments to the Convention, which principally
relate to the modalities of participation in the control machinery
of the ECHR (European Court of Human Rights, Committee of Ministers)
will be necessary on the Council of Europe’s side in order to allow
for accession. In
this regard, the Steering Committee for Human Rights (CDDH) prepared
a report in 2002 examining the technical and legal issues of a possible
EU/EC accession, advancing two principal modalities by which
accession could be achieved: either by way of an amending protocol
to the Convention or by means of an accession treaty to be concluded
between the EU and the Council of Europe member states. Although the
CDDH expresses preference for the latter option, it was deemed that
explicit reference to an accession treaty should be avoided so as
to keep all options open. Due
to the fact that the EU was held to lack competence to accede, no further modifications to the Convention
were included in Protocol No. 14. As a result, and depending on
the modalities chosen for accession, further modifications must
become subject to a separate ratification procedure. 3.2. Possibilities in the event of an unchanged institutional system
3.3. Follow-up
4. Conclusions and recommendations
but
also the vital role played by the ECHR and the Strasbourg Court
in this area. For instance, Article 6, paragraph 2, of the Treaty
on European Union stipulates: “the Union shall respect fundamental
rights, as guaranteed by the Convention for the Protection of Human
Rights and Fundamental Freedoms …”. The
Charter of Fundamental Rights of the European Union (EU Charter)
as well as its “explanatory report” further make explicit reference, inter alia, to the ECHR and the
case law of the Strasbourg Court. In addition, the Court of Justice
explicitly follows the European Court of Human Rights’ case law
in deliberating cases brought before it. Further, the
recent creation of the EU Agency for Fundamental Rights confirms
the EU’s growing commitment to human rights. In light of the foregoing,
it is clear that “human rights have thoroughly permeated the Community
legal system”. EU
accession to the ECHR therefore represents a logical and necessary
next step in harmonising the corpus juris concerning fundamental
human rights across Europe.
- greater protection of individuals’ rights;
- consistency both at the level of European institutions and as between the EU/EC and individual member or prospective member states;
- external review by an independent court, and enhanced credibility of the EU vis-à-vis third countries in implementing human rights standards.
The adoption of the EU Charter
only enhances the relevance of these considerations since accession
to the ECHR and the implementation of the EU Charter should be seen
as complementary processes. Appendix 1 – Contribution by Mr Pieter van Dijk, member of the Venice Commission and former judge on the European Court of Human Rights
(open)I. Introductory observations
This
lapse of time may have enhanced and at the same time diminished
its urgency. In my opinion, from a substantive and practical point
of view, its urgency has been diminished, thanks to the way in which
the Court of Justice of the European Communities has developed its
case law in the area of the protection of human rights, and thanks to the gradual standard-setting
of the EU/EC in the same area. On the other hand, from a dogmatic
and formal point of view, the urgency has increased in view of the
extension of the powers of the EU/EC in fields which traditionally
belong to states, and in the exercise of which all member states
of the EU would be submitted to the jurisdiction of the European
Court of Human Rights. have
found broad support in governmental and nongovernmental circles,
the adoption of the Treaty establishing a Constitution for Europe was
the first occasion where the idea was supported unanimously by the
heads of state or government of all member states. The change of
attitude of the former opponents may be explained by the fact that
their domestic authorities have also become accustomed to international
human rights standards and international supervision; the ECHR has
internal effect in their domestic legal orders and the jurisdiction
of the Strasbourg Court has become compulsory. If only for this
reason, the moment seems more appropriate than ever for the (Parliamentary
Assembly of the) Council of Europe to, on its part, revisit the
issue and take the necessary initiatives.II. Practical point of view: the Court of Justice’s case law
III. Principal point of view: international supervision
and with its own supervisory
mechanism attuned to that special relationship. On the other hand,
the institutions of the EU/EC exercise powers which are delegated to
them with exclusion of the national authorities and which are comparable
to certain powers traditionally exercised by the legislative, administrative
and judicial authorities of the member states. Without such attribution
of powers to the EU/EC, the exercise of these powers by the authorities
of the member states would have been subject to review by the Strasbourg
Court for its conformity with the ECHR. In fact, accession to the ECHR,
with compulsory jurisdiction of the Court, was in recent years,
and still is, a condition for membership of the EU/EC. For its credibility as a defender
of human rights the EU/EC has to be prepared to also submit its
own legal order and legal action to external supervision. This
would mark the recognition that also within the legal order of the
EU/EC the interests of European integration are controlled and bound
by the effective protection of the fundamental human rights of the
EU citizens, this “common code of fundamental values, in particular
those laid down in the European Convention on Human Rights”. However, this rationale would
seem less valid in the area of human rights, since human rights
standards are not just part of the legal system in the framework
of which they have been adopted but are of a general universal or
regional nature, as the case may be. Consequently, the international
bodies set up to supervise the implementation and interpretation
of these standards may be embedded in a particular organisation,
but they must be seen primarily as the protectors of these universal/regional
standards rather than as the supervisory bodies of those organisations. This lacuna will gradually be filled,
to a large extent, by the Court of Justice’s supervision of EU/EC
acts as regards their conformity with the principles of fundamental
rights, but this will not necessarily lead to a result equivalent
to supervision by the Strasbourg Court. that the member states cannot, by transferring
powers to an international institution, evade their own responsibility
under the ECHR and their accountability to the Strasbourg Court. The European Commission for Human
Rights had put it in very clear terms as follows: “Under Article
1 of the Convention the member states are responsible for all acts
and omissions of their domestic organs allegedly violating the Convention
regardless of whether the act or omission in question is a consequence
of domestic law or regulations or of the necessity to comply with
international obligations.” And
in a judgment of 1996 the Strasbourg Court held that the fact that
the applicable domestic legislation is based almost word for word
on an EC directive does not remove it from the ambit of the ECHR. For the scope of the Strasbourg Court’s review
and the member state’s responsibility under the ECHR to pertain,
it appears to be decisive whether or not the member states exercised
discretion and had freely accepted
the international obligation concerned. IV. The Strasbourg attitude so far
to
do so by bringing the claim, in addition to or instead of the EU/EC,
to any or all member states. By “equivalent”, the Strasbourg
Court means “comparable”, since “any requirement that the organisation’s
protection be ‘identical’ could run counter to the interest of international
co-operation pursued”. From the case law of
the Court of Justice and the references to human rights standards
in the respective EU/EC treaties, the Strasbourg Court has so far
drawn the assumption – with the possibility of rebuttal in a specific
case – “that the protection of fundamental rights by EC law can
be considered to be, and to have been at the relevant time, ‘equivalent’
… to that of the Convention system”. V. Specific identity of the EU
After
accession, the Strasbourg Court would have direct jurisdiction over
the EU/EC institutions, would be informed about the EU/EC perspective
on behalf of the EU/EC institution involved in a particular case,
and would thus be enabled to take the specific features of the EU/EC
as an organisation and of EU/EC law into account (with a judge elected in
relation to the EU/EC participating in the deliberations). This
would enhance the uniform interpretation and application of the
ECHR in relation to all actions of authorities vis-à-vis individuals
within the European human rights space, also taking into due account
the specificities of the EU/EC. To
what extent the Strasbourg Court will be prepared to do so appears
from its judgment in the Bosphorus case. The government had contended
that the interference complained of was justified for the reasons
set out by the Court of Justice, an assessment that the Strasbourg Court
in their opinion should decline to review “unless it is perverse,
which they argue it clearly is not”. The Strasbourg
Court followed this reasoning by stating that “[i]f such equivalent
protection is considered to be provided by the organisation, the
presumption will be that a state has not departed from the requirements
of the Convention when it does no more than implement legal obligations
flowing from its membership of the organisation”. But,
again, such presumption may be rebutted; the “equivalent protection
doctrine” functions as a kind of a “Solange doctrine”. The “equivalent protection” criterion
would thus function as an admissibility criterion, not as a jurisdiction
condition. If the application is accepted by the panel, it will
be dealt with by the Grand Chamber. This will keep the additional
burden for the Strasbourg Court as restricted as possible, while
this process of co-operation would also avoid a “prestige battle”
between the two judicial organs. VI. Treaty basis for accession
VII. Concluding observations
Appendix 2 – Contribution by Mr Francis G. Jacobs, Professor of Law, King’s College (London), and former Advocate General at the Court of Justice of the European Communities
(open)I. Introduction
This is a short written version, as requested, of my analysis. It assumes that the proposed EU “Reform Treaty” (Treaty of Lisbon), due to be agreed in October 2007, enters into force. That treaty will have the consequence of providing a treaty basis for the European Union to accede to the ECHR, a basis which arguably does not exist under the present treaties; indeed it will have the effect of not merely enabling, but requiring the European Union to accede to the ECHR. Moreover, while previous discussion has considered the issue of accession by the EU/EC, and has involved discussion of the EU’s capacity to enter into treaties, the European Union will be the sole relevant organisation since, under the Treaty of Lisbon, the European Community will be subsumed into the European Union and will cease to exist, while the EU will have unquestioned treaty-making capacity. In the rest of this note I refer only to the EU.
I am asked to consider in particular the implications of EU accession for the observance of human rights standards across Europe and the relationship between the European Court of Human Rights and the Court of Justice of the European Communities.
II. The consequences of EU accession
In my view EU accession, while widely regarded as valuable for political and symbolic reasons, will have rather limited concrete effects on the observance of human rights standards. The effects will be limited because the ECHR is already accepted as the fundamental standard of human rights protection in Europe: this has long been recognised, for example, in the Treaty on European Union itself, and in the EU’s own policies including its enlargement policy. More recently it has been accepted in the case law of the Court of Justice, which not only applies the ECHR as if it were already in force for the EU, but also closely follows the case law of the European Court of Human Rights. The significance of the Court of Justice’s case law was strikingly recognised by the European Court of Human Rights itself in its judgment in the Bosphorus Airways case.
III. The legal effects of accession – Gaps in the present system
For legal, as opposed to political, purposes the main question must be whether the absence of EU accession leaves gaps in the system of human rights protection. The picture is of course complex: it must take account of, for example, both the case where member states implement EU law and the case where the EU institutions themselves are said to infringe the ECHR; a distinction must also be drawn between treaty measures (and measures of equivalent status) and subordinate measures in the form of EU legislation or decisions. But the answer is briefly that the existing gaps are not great: they are most likely to arise in the limited areas where the Court of Justice does not have the requisite jurisdiction. It would be desirable, in any event, for the Court of Justice’s jurisdiction to be extended to cover all cases in which the ECHR rights of individuals were affected by EU measures. Indeed the absence of a judicial remedy before the Court of Justice might itself be a violation of the ECHR. A possible beneficial effect of EU accession to the ECHR could therefore be the enlargement of the jurisdiction of the Court of Justice in such cases. That enlargement could be effected by treaty amendment or in some areas by development of the Court of Justice’s case law – for example, by enlarging the individual’s right of access to the EU courts, in particular the Court of First Instance.
IV. The EU Charter of Fundamental Rights
The system of protection of human rights in the EU will be made more complex by the EU Charter of Fundamental Rights, which will become legally binding (with certain limits) under the Reform Treaty, although not incorporated into the treaties. The intention of the charter is that those rights which correspond to ECHR rights should be interpreted consistently with ECHR rights. But the existence of two separate texts, with different formulations, will cause confusion. Further confusion may be caused if it is forgotten that the charter binds EU member states only where they are implementing EU law. There is also a risk of division between EU member states and non-member states, the latter bound by the ECHR but not by the charter. Measures should be taken, if possible, to limit the confusion and to ensure harmonious interpretation. The ECHR should remain the bedrock of human rights protection in Europe.
V. The modalities of EU accession to the ECHR
Negotiating the modalities of EU accession to the ECHR, and deciding what amendments are necessary to the Convention system and to the Convention text, may prove a difficult exercise. Substantive questions will arise about the scope of the Convention rights and their limitations, procedural questions about the relationship between the EU and its member states in proceedings before the European Court of Human Rights, institutional questions about the place of the EU on the Court and in the Committee of Ministers. It is essential, however, that the Convention system should not become unduly complex and that nothing is done which would weaken the Convention system.
Appendix 3 – Contribution by Mrs Florence Benoît-Rohmer, Professor at the Robert Schuman University (Strasbourg)
(open)After a long period during which several European Union member states had serious misgivings about the EU’s accession to the ECHR, there is now unanimous support for this. The time for debating principles appears to be behind us, and it now seems more important to consider the practical implications.
I. Arguments in favour of accession
The basic arguments in favour of accession have become considerably weaker over time. Today, pursuant to Article 6, paragraph 2, of the Treaty on European Union, the European Union respects the rights safeguarded by the Convention, since they are incorporated in the treaty. In its case law, the Court of Justice requires the Community and the member states, where they are acting under Community law, to respect these rights as general principles of law. Admittedly, the actions of the EU in the field of justice and home affairs (JHA) have so far been largely beyond the supervision of the court, and this is a particularly sensitive field in respect of human rights. The “Communitarisation” of JHA, provided for in the constitution and in the treaties now being negotiated will make good this loophole.
Further to the Matthews and
Bosphorus Airlines judgments,
however, EU scrutiny does not rule out supervision by the European
Court of Human Rights. According to the latter judgment, Community
acts are presumed to be in keeping with the Convention, provided
Community law affords protection equivalent to that provided by
the Convention. This presumption is not absolute, however, and may
be rebutted in individual cases. In practice, the situation is very
similar to accession from every point of view.
In the circumstances, is there still a benefit to be gained
from accession? Politically, accession would be a clear sign of
European solidarity in the area of fundamental rights. In practical
terms, it would simplify legal remedies, for the procedures that
currently have to be followed by a potential victim are complicated
in that, after exhausting domestic and EU remedies, he or she must
lodge an application with the Strasbourg Court, not against the
perpetrator of the contested act (the Union or the Community), but
against a member state. If that state is convicted, there is no
guarantee that the victim’s situation will be remedied, since the
remedy depends on a third party, the European Union. To be convinced
of this, one need only look back at the saga of the right of the
inhabitants of Gibraltar to vote in the European elections. It took
the indulgent intervention of the Court of Justice of the European
Communities to provide an answer, which the European institutions
had not succeeded in doing.
Furthermore, the prospective applicant is forced to engage in subtle analyses in order to determine whether the protection afforded by Community law is or is not equivalent to that provided by the Convention. The various unknown factors may prevent him or her from lodging an application, which is hardly conducive to ensuring judicial protection. Moreover, it is somewhat illogical for a state to be accused of an act for which it is not responsible, while the body actually responsible, the EU, cannot be party to the dispute. Accession would simplify the situation in this respect. Lastly, it would ensure that Article 1 of the Convention is fully effective, by rendering it applicable, no doubt, to all acts within its scope.
To sum up, while the existence of pragmatic solutions probably make accession less urgent that it used be, the need for clarity, legal certainty and judicial protection for individuals, along with political factors, militates in its favour.
II. Do the treaties need to be revised?
Here we need to be realistic. The member states accepted Opinion
No. 2/94, which the Court of Justice of the European Communities
delivered in 1996, on the need to revise the treaties to permit
accession. There is no reason to believe that they will change their
position. Indeed, they went further by inserting a clause concerning accession
in the constitution.
This clause is included in the amending treaties currently being negotiated within the EU. Everything therefore depends on the entry into force of these treaties. In the meantime, all the controversy over the legal possibility of acceding without revising the treaties or of obtaining an opinion from the Court to this end are merely a waste of time – time that could be better spent supporting ratification.
III. Conditions of accession
According to the instruments currently being examined, accession must be based on an agreement negotiated by the Commission in accordance with the classic procedure, on the basis of a mandate from the Council. In the light of the Constitution, the agreement will have to be approved unanimously by the EU members and no longer by a qualified majority. Undue importance should not be attached to this change, which stems from a desire to avoid a transfer of power that would require a referendum in some member states before it could be approved, and not from any distrust of the Convention. In any event, as all the member states are parties to the Convention, their consent would be needed in order to have the accession agreement ratified by their national parliaments. The unanimity requirement does not introduce any substantive change.
The amending treaties maintain the accession requirement: the English text reads: “The Union shall accede” to the ECHR.
IV. The need to preserve the specific characteristics of the EU
The draft amending treaties incorporate the protocol appended
to the constitution, on the EU’s accession to the ECHR. Article
1 of the protocol makes accession conditional upon respect for the
specific characteristics of the Union and Union law. This requirement
has major implications for the way in which the Court’s supervision
operates and for the institutional aspects of accession.
Given the sharing of competence between the EU and its member states, it is necessary to ensure that applications are lodged against the party that is actually responsible for the violation. The decision is not easy where states are concerned when EU law affords states a margin of appreciation. In such cases it is necessary to determine whether or not the violation took place within the scope of that margin of appreciation. To leave it to the European Court of Human Rights to determine this would be tantamount to allowing it to pass judgment on the apportionment of competence between the EU and its member states, which is not acceptable. It is therefore necessary to devise a system that allows the individual to attack the EU and a member state simultaneously, leaving it to the EU itself to designate the respondent party, if necessary with the help of the Court of Justice of the European Communities. A solution of this kind is already provided for in Article6 of Annex IX to the Convention on the Law of the Sea.
The other question concerns the EU’s participation in the supervisory machinery. In the case of the Court, the specific features of the Court would seem to require the presence of an “EU judge”. The question is whether this judge should vote in all cases or only those in which the EU’s responsibility is in issue. As for the Committee of Ministers, appropriate provision will have to be made for EU participation in proceedings concerning the ECHR.
What form should the Court’s supervision take? It has sometimes been suggested that the Court of Justice should refer preliminary questions to the European Court of Human Rights. Such an arrangement does not seem to respect the specific characteristics of the EU, which, in its area of competence, should be considered a party like any other. Moreover, imagine how long a case would last if the Court of Justice, to which a preliminary issue had been referred, referred a preliminary question in turn to the European Court of Human Rights. Some four or five years could elapse before the domestic court handed down a decision on the merits. Such a solution could deter applicants, and this would raise serious problems with regard to the uniform application of Community law. The only reasonable approach is that based on individual petition after the exhaustion of domestic remedies, because it gives the individual a free choice.
Accession cannot be fully effective in this regard unless the European Court of Human Rights succeeds in speeding up its decision-making process. The entry into force of Protocol No. 14 is therefore, in all respects, a prerequisite, and the reform of the system must be diligently pursued.
V. Respect for the powers of the EU institutions
This requirement of the protocol on the accession of the EU to the ECHR is designed, in particular, to preserve the role of the Court of Justice, which is to retain exclusive power to review the lawfulness of the EU’s acts. The Strasbourg Court’s judgments must remain declaratory, and it will be for the EU institutions to decide on the implications of any conviction.
Similarly, the Court of Justice has sole jurisdiction, as
it vehemently pointed out recently, to settle disputes between member
states concerning the application of the treaty. It is therefore
necessary to exclude such disputes once accession takes place and
reserve jurisdiction over them for the Court of Justice. This principle is
set out in paragraph 3 of the protocol.
VI. Commitments of the member states and of the EU
Article 2 of the protocol on the accession of the Union to
the ECHR is designed to govern relations between the commitments
of the EU and those of the member states in relation to the Convention. Each party must remain in
control of its own undertakings and free to choose their scope.
The EU’s commitments must not affect the member states in their
areas of competence. This implies that EU involvement in a protocol
must not entail any obligations in a field of competence specific
to a member state that has chosen not to ratify the protocol, and
vice versa.
VII. Conclusion
The principle of accession is no longer contested, and it is now necessary to focus not on accession itself but on the way in which it should be implemented. In other words, for the sake of effectiveness, we must consider that the time for political rhetoric has passed and must now get down to concrete work on the practical aspects of the EU’s participation, with due regard for its specific characteristics and the constraints to which it is subject.
Appendix 4 – Contribution by Mr Olivier De Schutter, Professor at the Law Faculty of the Catholic University of Leuven and at the College of Europe (Bruges)
(open)I. Introduction
In view of the hearing it is planning to hold in Paris on 11 September 2007, the Committee on Legal Affairs and Human Rights of the Parliamentary Assembly of the Council of Europe has requested an opinion on the introductory memorandum (AS/Jur(2007) 22 rev., 9 July 2007) prepared by the rapporteur, Mrs Marie-Louise Bemelmans-Videc, on the question of the accession of the European Union/European Community to the European Convention on Human Rights (this document will hereafter be referred to as “the memorandum”). These comments first address the new context created, since the memorandum was completed, by the provisional political agreement reached among the EU heads of states and governments on the draft Treaty amending the Treaty on European Union and the Treaty establishing the European Community (draft Reform Treaty). It then examines a number of issues raised by the introductory memorandum.
II. The draft Treaty amending the Treaty on European Union and the Treaty establishing the European Community (draft Reform Treaty)
In view of the preparation of the report of the Parliamentary Assembly, the memorandum should be amended to take into account the political agreement reached on the text of a draft Treaty amending the Treaty on European Union and the Treaty establishing the European Community (draft Reform Treaty) (CIG 1/07, 23 July 2007), which in all likelihood will be confirmed on 18 and 19 October 2007 and signed at the European Council of December 2007. In this regard, three comments should be made.
i. The competence of the European Union to accede to the ECHR
First and most importantly, the draft Reform Treaty anticipates that the EU will be attributed the competence to accede to the European Convention on Human Rights. The text on which provisional agreement was obtained would include an amendment to Article 6 of the Treaty on European Union, which would now state in paragraph 2:
“The Union shall accede to the Convention for the Protection of Human Rights and Fundamental Freedoms. Such accession shall not affect the Union’s competences as defined in the Treaties.”
Apart from the abandonment of the word “constitution”, this phrase is identical to that mentioned in Article I-9.2, of the Treaty establishing a Constitution for Europe, which was signed on 29 October 2004 following the previous Intergovernmental Conference but which could not be ratified by all the EU member states and, thus, will not enter into force. However, the draft Reform Treaty also provides for the insertion in the amended Treaty establishing the European Community (renamed Treaty on the Functioning of the European Union (TFEU)) of Article 188n, replacing former Article 300. Article 188n would provide, first, that the European Parliament should consent to the agreement on Union accession to the Convention for the Protection of Human Rights and Fundamental Freedoms, prior to this agreement being concluded by the Council (Article 188n, paragraph 6, sub-paragraph 2.a.ii). And it would add (Article 188n, paragraph 8, second sub-paragraph) that:
“… The Council shall … act unanimously for the agreement on accession of the Union to the Convention for the Protection of Human Rights and Fundamental Freedoms; the decision concluding this agreement shall not come into force until it has been approved by the member states in accordance with their respective constitutional requirements.”
In other terms, the conclusion of an agreement on the accession of the EU to the ECHR is treated as a constitutional question, requiring that each member state ratifies the agreement prior to it entering into force. This goes beyond not only the requirement that the Council act by qualified majority when authorising the opening of negotiations, adopting negotiating directives, authorising the signing of agreements and concluding them – which is the general rule in the negotiation and conclusion of international agreements by the Union – but also the requirement of the Council acting unanimously. Since this may put in jeopardy the objective of concluding an agreement on the accession of the EU to the ECHR for which the heads of state and governments of the member states of the Council of Europe have stated their support at the Warsaw Summit of May 2005, the Parliamentary Assembly of the Council of Europe might wish to consider sending a strong signal that thus adding a supplementary hurdle is not in conformity with that proclaimed intention, and that it can only result in delaying further the process of accession.
ii. The legal personality of the European Union
Second, the draft Reform Treaty provides for insertion of
Article 32 into the Treaty on European Union in order to ensure
that the Union shall have legal personality, following the entry
into force of the Reform Treaty. The memorandum states, on this
point, that “the EU/EC must also have legal personality, which,
to date, is only recognised for the EC, although some argue that
the EU’s legal personality has been recognised implicitly, at the
latest by the Treaty of Nice” (paragraph 16, footnote omitted).
However, it should be noted that there is a consensus among jurists
that the European Union has an international legal personality. This follows
from Articles 24 and 38 of the Treaty on European Union, which provide
that “the Council”, representing the Union (that is to say, not
the EU member states), and acting as one of the institutions of
the Union, concludes international agreements. The Treaty of Nice, in so far
as it amends Article 24 of the Treaty on European Union, merely
confirms what was already the case prior to its entry into force.
In so far as the EU has been attributed a competence to conclude
international agreements – and it has, indeed, exercised this competence – it follows that it is endowed with
the international legal personality, without it being necessary to
stipulate this explicitly. This
is also the view adopted by the Legal Service of the Council of
the European Union, at least since 2000. It
may not be advisable to adopt, on this point, a position which is
less progressive than that of the Council of the EU itself.
iii. Judicial protection under Union law
A third contribution of the draft Reform Treaty to the debate on the accession of the Union to the ECHR concerns the question of remedies. In the course of the debate on the accession of the EU to the ECHR, one of the most frequently heard arguments in favour of the said accession – but one not mentioned in the memorandum – is that the remedies open to private parties (whether individuals or legal persons) in the EU/EC legal order are in certain respects insufficient, and that, by contrast, Article 34 of the ECHR is relatively generous in defining the conditions under which a person alleging to bea victim of a violation of a right or a freedom recognised under the ECHR may file an individual application before the European Court of Human Rights. Therefore, according to this argument, the accession of the EU to the ECHR would ensure that any individual aggrieved by an act adopted by the EC or the EU will have access to a court, which will be competent to determine whether or not that act infringes fundamental rights.
This argument, which was still very powerful a few years ago,
now should be treated with caution. The question of whether the
individual whose legal situation is affected by an act adopted by
the EU/EC has access to the judicial remedies required under Article
13 ECHR (right to an effective remedy), which Article 47 of the
EU Charter of Fundamental Rights builds upon while further strengthening
its requirements (right to an effective remedy and to a fair trial),
presents at least three distinct
branches.
First, there is the question whether the general system of
remedies organised by the Treaty establishing the European Community
(including both direct actions before the Court of Justice and the
referral by national courts to the court, which may adopt preliminary
rulings in the conditions specified in Article 234 of the Treaty establishing
the European Community) complies with those requirements. The rules
of the Treaty establishing the European Community still currently
present significant gaps in this regard: although direct actions
seeking the annulment of Community acts with a general scope of
application can only be filed by individuals which have not only
a direct interest in seeking their annulment, but also an individual
interest (according to the traditional interpretation of Article
230, fourth paragraph), certain regulatory acts may directly affect
individuals without individualising them sufficiently for this criterion
to be satisfied; and the alternative of seeking a referral from
national courts may not be satisfactory where this would oblige
an individual to run the risk of being subjected to penalties for
having violated a rule applicable to him. However, without modifying
its interpretation of the conditions in which a private person may
file a direct action before the Court of Justice for the annulment of
a Community act, the court has shown in its recent case law a willingness
to impose an obligation on states to adapt their national legal
systems (specifically, the procedures before the national courts)
in order to ensure that the full system of remedies will not leave
any gap. Thus, in a judgment it delivered on 13 March 2007, the Court
of Justice noted:
“Although the EC Treaty has made it possible in a number of instances for private persons to bring a direct action, where appropriate, before the Community Court, it was not intended to create new remedies in the national courts to ensure the observance of Community law other than those already laid down by national law...
It would be otherwise only if it were apparent from the overall scheme of the national legal system in question that no legal remedy existed which made it possible to ensure, even indirectly, respect for an individual’s rights under Community law...
Thus, while it is, in principle, for national law to determine an individual’s standing and legal interest in bringing proceedings, Community law nevertheless requires that the national legislation does not undermine the right to effective judicial protection... It is for the member states to establish a system of legal remedies and procedures which ensure respect for that right....”
This judgment confirms that the Court of Justice is willing to require that the EU member states contribute to the elaboration of a complete system of remedies which will ensure that the requirements of Article 47 of the EU Charter of Fundamental Rights will be complied with within the EC legal order.
A second problem results from the specific conditions under which the competences of the Court of Justice under Article 234 of the Treaty establishing the European Community (referral for preliminary rulings) will be exercised in the areas covered by Title IV (visas, asylum, immigration and other policies related to the free movement of persons).
A third problem, finally, concerns the limited powers of the Court of Justice under Title VI of the Treaty on European Union. It is left to each EU member state to define, to a large extent, the conditions under which its national jurisdictions will be allowed (or, in certain cases, obliged) to co-operate with the Court of Justice by using a referral mechanism (see Article 35 of the Treaty on European Union). And there is no provision for the filing, by a private individual, of a direct action in annulment of acts adopted by the EU under this title of the treaty.
These problems are analysed elsewhere and there is no need
here to enter into them in detail. Indeed,
as in the 2004 Treaty establishing a Constitution for Europe, in
the draft Reform Treaty the normal jurisdiction of the Court of
Justice will apply to all justice and home affairs matters, with
the sole exception of a specific restriction to be set out in Article
240b of the Treaty establishing the European Community (TFEU):
“In exercising its powers regarding the provisions of Chapters 4 and 5 of Title IV of Part Three relating to the area of freedom, security and justice, the Court of Justice of the European Union shall have no jurisdiction to review the validity or proportionality of operations carried out by the police or other law-enforcement services of a member state or the exercise of the responsibilities incumbent upon member states with regard to the maintenance of law and order and the safeguarding of internal security.”
This restriction (which was Article III-377 of the Treaty
establishing a Constitution for Europe) applies only to criminal
law and policing, and retains the current Article 35, paragraph
5, of the Treaty on European Union. The various other restrictions
on the court’s jurisdiction over matters relating to judicial cooperation
in criminal matters and police co-operation, on the one hand (Article
35), and to visas, asylum, immigration, and other policies related
to the free movement of persons, on the other hand (Article 68 of
the Treaty establishing the European Community), are to be repealed.
Not only will the powers of the Court of Justice be extended – the jurisdiction it now enjoys under the Treaty establishing the European Community spreading to all fields under the EU/EC treaties – but, in addition, the draft Reform Treaty intends to improve access to justice by individuals, partly by liberalising the rules on standing for the filing of direct actions for annulment of regulatory acts, and partly by constitutionalising the case law of the Court of Justice, already referred to above, which ensures that the EU member states contribute to guaranteeing that the right to an effective judicial remedy will be safeguarded in the EU legal order. The draft Reform Treaty will amend Article 230, fourth paragraph, of the Treaty establishing the European Community (Treaty on the Functioning of the European Union). This provision would now read:
“Any natural or legal person may, under the same conditions, institute proceedings against an act addressed to that person or which is of direct and individual concern to him or her, and against a regulatory act which is of direct concern to him or her and does not entail implementing measures.”
In addition, the draft Reform Treaty provides that an Article
9.f will be inserted into
the Treaty on European Union, on the Court of Justice of the European
Communities. This includes an obligation imposed on the EU member
states to contribute to ensuring that the right to an effective
judicial remedy will be recognised to all persons affected by Union
law (Article 9.f, paragraph
1, second sub-paragraph):
“Member states shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law.”
In sum: a. the memorandum could refer to the fact that, under the EU/EC treaties, the legal protection of the individual may be insufficient, and his right to an effective remedy may not always be fully complied with; b. it could add that this situation will be significantly improved by the Treaty amending the Treaty on European Union and the Treaty establishing the European Community, which currently has been provisionally agreed to in its draft form; and c. it could conclude by stating that, while the improvement of the remedies available within the legal order of the European Union ensures that, in the vast majority of situations, any alleged violation of the ECHR rights will be addressed within the EU legal order and according to legal procedures established by the EU treaties themselves, there remains a distinct advantage in organising an external judicial supervision of compliance with human rights and fundamental freedoms. Thus, while the EU should not fear any far-reaching consequences of accession to the ECHR for the system of judicial remedies organised by the EU treaties (since the needed reforms are already under way), it should at the same time recognise that however complete and developed, a system of judicial protection of the rights of the individual internal to the legal order from which the measures threatening those rights emanate is inherently less capable of a fully objective and impartial appreciation of the requirements of judicial protection. In addition, while the Court of Justice may identify instances of violation of fundamental rights which result from secondary Union law (from the adoption, in particular, of regulations, directives, decisions, or judgments of the Court of First Instance), it cannot remedy violations which have their source in primary Union law (that is to say, in the EU treaties themselves), which the Court of Justice is bound to respect.
III. Arguments in favour of accession of the EU to the ECHR
The memorandum presents a list of arguments in favour of accession. It refers, appropriately, to the fact that the accession of the Union to the European Convention on Human Rights will ensure that the Union will be represented as such in the European Court of Human Rights and on the Committee of Ministers of the Council of Europe, which oversees the enforcement of the Court’s judgments. This situation will be more satisfactory than the situation that exists today, where the compatibility of acts of the Union with the European Convention on Human Rights is in fact reviewed by the European Court of Human Rights, albeit in an indirect way – since this review takes place through the international responsibility of the Union member states, who are all Contracting Parties to the European Convention on Human Rights – and without the Union being represented in any way in the monitoring bodies.
Two supplementary arguments could be put forward, however.
i. Access to remedies
First, as mentioned above, reference could be made to the question of the legal remedies available to the individual whose human rights have been violated. While, in my view, the current state of EU law is not satisfactory under Article 13 of the ECHR – and the possibilities for the individual victim to file an application before the European Court of Human Rights under Article 34 of the Convention are wider than under the range of remedies available in the EU legal order – the Reform Treaty should improve this, and the changes proposed to the jurisdiction of the Court of Justice, if combined with the obligation of the EU member states to organise remedies before the national courts in accordance with the requirements of Article 47 of the EU Charter of Fundamental Rights, will probably ensure that the EU will be in conformity with the requirements of the ECHR.
ii. Problems with the current situation
a. The execution of the judgments of the European Court of Human Rights in cases involving Union law
A first problem is that, when the European Court of Human
Rights arrives at the conclusion that the Convention has been violated,
the state party against which the application has been filed may
find it difficult to comply with that judgment, although it has
a legal obligation to do so under Article 46 of the ECHR. In Matthews v. the United Kingdom,
the European Court of Human Rights found the United Kingdom to have
breached Article 3 of the First Additional Protocol to the Convention,
because the applicant could not take part in the election for the
European Parliament as she was a resident of Gibraltar (judgment
of 18 February 1999). But this situation – while it fell under the
territorial jurisdiction of the United Kingdom – flowed from an
annex to the Act concerning the Election of the Representatives
of the European Parliament by Direct Universal Suffrage of 20 September
1976, which was attached to Council Decision No. 76/787, signed
by the President of the Council of the European Communities and
the then member states’ foreign ministers, together with the extension
to the European Parliament’s competences brought about by the Maastricht
Treaty on European Union on 1 November 1993. Since the violation
had its source in EU law – specifically, in primary EU law (the
EU treaties) – the United Kingdom alone could not in principle decide
to comply with the judgment of the European Court of Human Rights.
While the European Parliament (Representation) Act 2003 (EPRA, 2003)
finally did provide for the enfranchisement of the Gibraltar electorate
for the purposes of European Parliamentary elections as of 2004, this
action was taken unilaterally after a failure to secure the unanimous
agreement of the Council to an amendment to the EC act on direct
elections of 1976 to provide for its application to Gibraltar. Ireland would
have faced a similar difficulty if, in the case of Bosphorus Hava
Yolları Turizm ve Ticaret Anonim Şirketi, the European Court of
Human Rights had concluded that the Convention had been breach by
the impounding of the aircraft leased by the applicant company.
b. The degree of judicial scrutiny to be applied to measures adopted by the European Union
A second problem is that measures adopted by the EU/EC are examined by the European Court of Human Rights with a lower level of scrutiny. In the case of Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland, the Court confirmed its previous positions according to which, although the Convention does not prohibit contracting parties from transferring sovereign power to an international (including a supranational) organisation in order to pursue co-operation in certain fields of activity, a contracting party nevertheless remains responsible under Article 1 of the Convention for all acts and omissions of its organs regardless of whether the act or omission in question was a consequence of domestic law or of the necessity to comply with international legal obligations. In the view of the Court, “absolving contracting states completely from their Convention responsibility in the areas covered by such a transfer would be incompatible with the purpose and object of the Convention”. However, said the Court (in paragraph 155 of its judgment):
“State action taken in compliance with such legal obligations is justified as long as the relevant organisation is considered to protect fundamental rights, as regards both the substantive guarantees offered and the mechanisms controlling their observance, in a manner which can be considered at least equivalent to that for which the Convention provides.... By ‘equivalent’ the Court means ‘comparable’: any requirement that the organisation’s protection be ‘identical’ could run counter to the interest of international co-operation pursued.... However, any such finding of equivalence could not be final and would be susceptible to review in the light of any relevant change in fundamental rights’ protection.”
This “Solange” approach is closely inspired by the attitude
of the German Federal Constitutional Court (Bundesverfassungsgericht)
when asked to recognise the supremacy of EU law even where this
might result in situations where the catalogue of fundamental rights
of the Grundgesetz would be
set aside. In 1990, it was imported by the
European Commission of Human Rights, inspired in that respect by
Henry Schermers and H.-C. Krüger. This doctrine benefits Union law; more
precisely, it benefits the EU member states, as States Parties to
the European Convention on Human Rights, when they implement Union
law in the absence of any margin of appreciation. By contrast, it
does not benefit states parties to the Convention, even where they
have organised a system of protection of fundamental rights in their
internal legal orders which may be considered “equivalent”, both
substantively and procedurally, to that provided by the European
Convention on Human Rights (for instance, where their national courts
apply directly the Convention and take into account the interpretation
given to the Convention by the European Court of Human Rights, and
where there exists a constitutional court which can annul or set
aside national legislation conflicting with the requirements of
the Convention).
This doctrine of “equivalent protection” has been initially
devised in order to facilitate the participation of the states parties
to the Convention in the EU/EC, a supranational organisation to
which they have agreed to cede certain powers in a number of fields
which may affect fundamental rights. In the event of the Union acceding to
the Convention, there are three possible scenarios. A first scenario
is that this doctrine of “equivalent protection” will expand further,
to any situations where, at national level, such “equivalent” protection
is provided. This “spreading out” of the doctrine would clearly
manifest the principle of subsidiarity in the system of the European
Convention on Human Rights – the principle according to which the
protection of the rights and freedoms of the Convention must primarily
take place at national level, the intervention of the European Court
of Human Rights being only justified where those internal mechanisms
have failed to prevent violations from occurring or, if they do
occur, from being remedied. Some might see this as a welcome development,
in a context where the European Court of Human Rights manifestly
cannot manage its increasing caseload, and where even the solutions
offered by Protocol No. 14 to the Convention will have a limited
impact. A second scenario is that, instead, the doctrine of “equivalent
protection” will be abandoned. In a situation such as that presented
in Matthews or Bosphorus Airways, it will be the Union, not the
member state implementing Union law under whose territorial jurisdiction
the alleged violation has occurred, that will in fact have to respond,
under the Convention, to the measures adopted. The European Union
will be approached by the European Court of Human Rights as any
other party to the Convention, the only difference residing in the
need to take into account the division of competences between the
Union and the member states: there is no reason to apply a lower level
of scrutiny to the acts adopted by the Union than to the acts adopted
by any other parties to the European Convention on Human Rights,
since the sole purpose of the doctrine of “equivalent protection”
– requiring that a lower level of scrutiny be applied – is to facilitate
the compliance by states with commitments they have made in the
context of a supranational organisation such as the EU/EC, without
setting aside their responsibilities under the Convention. A third scenario, finally,
is that nothing will change: the doctrine of “equivalent protection”
will continue to be relied upon by the European Court of Human Rights
when examining the compatibility of measures adopted by the EU with
the European Convention on Human Rights – whether these have their
source in primary or secondary Union law – but this doctrine will
not be relied upon in other circumstances.
I believe that, while this third scenario is not implausible,
it would be legally unjustified and politically inopportune. It
would be legally unjustified, since, once the Union accedes to the
Convention, the need to reconcile the potentially conflicting international
obligations of the EU member states (as having to comply both with
Union law and with their obligations under the Convention) will
have disappeared; in addition, while the doctrine may have been
useful for evaluating the obligations of the EU member states under
the Convention, its rationale should not be extended to evaluating
the obligations of the Union itself. The third scenario would also
be politically inopportune. Since it would not align the status
of the Union with that of the other parties to the Convention, it
would be sending the wrong signal to European citizens; and it would
only partly address the problems justifying the accession of the
Union to the Convention in the first place. Therefore, if the reference to
the “specific features” of the Union in the draft Reform Treaty
is meant to preserve the doctrine of “equivalent protection” it
should be challenged. This expression should only refer to the need
to organise the processing of applications filed against the EU
member states and/or the European Union, in order to take into account the
characteristics of the division of competences among them which,
in accordance with the principle of autonomy of the Union legal
order, should be resolved with reference to Union law alone, under
the supervision of the Court of Justice (see hereunder, Section
V). It should not serve to otherwise preserve some form of “extra-conventionality”
of the Union.
Ultimately, it will be for the European Court of Human Rights to decide among the three scenarios that have been outlined. It would be unwise to seek to influence the choice of the Court in this regard. What the Parliamentary Assembly of the Council of Europe could do, however, is to oppose any attempt, in the negotiation of the accession treaty (or of a protocol to the European Convention on Human Rights providing for the accession of the EU), to restrict the degree of scrutiny that the European Court of Human Rights will be allowed to exercise on the European Union.
c. The risk of conflicting interpretations of the requirements of the European Convention on Human Rights
I have noted that there are two risks present in the current situation, which constitute powerful arguments in favour of the accession of the Union to the European Convention on Human Rights. In contrast, I do not think that there exists a real risk of diverging interpretations of the requirements of the European Convention on Human Rights in the current situation. The Court of Justice applies the Convention with the interpretation given to that instrument by the European Court of Human Rights: its record in this respect has been generally excellent, and comparable to the best national constitutional or supreme courts of the contracting parties to the Convention. Of course, in situations where the Court of Justice has decided a case raising an issue under the Convention in the absence of a case law of the European Court of Human Rights, it may be difficult for the Court of Justice – as for any national constitutional court placed in a similar situation – to anticipate what the attitude of the European Court of Human Rights might be. But, if it is suspected that the Court of Justice has erred in applying the Convention to the situation it is confronted with, it remains possible for the victim of the alleged violation to seek to engage the responsibility of the EU member state under whose jurisdiction he or she is placed, by filing an application against that state (or indeed, against the 27 EU member states collectively) before the European Court of Human Rights, as Ms Matthews chose to do following the 1994 elections of the European Parliament.
IV. The complementarity of the incorporation of the EU Charter of Fundamental Rights in the EU treaties and accession of the Union to the ECHR
It is also appropriate that the memorandum underlines the
complementarity of the incorporation of the EU Charter of Fundamental
Rights in the EU treaties and accession of the Union to the ECHR.
As stated by the report on the situation of fundamental rights in
the Union in 2004 prepared for the EU Network of Independent Experts
on Fundamental Rights, an
analogy can be made with the inclusion in the member states’ constitutions
of a more or less extensive range of fundamental rights, which does
not prevent those states from acceding to the European Convention
on Human Rights or other international instruments for the protection
of human rights: likewise, the incorporation of the EU Charter of
Fundamental Rights in the European constitution does not invalidate
the accession of the Union to the European Convention on Human Rights
or deprive it of its utility. And just as it is all the easier for
the States Parties to the European Convention on Human Rights to comply
with the obligations of that Convention since their internal constitutional
law ensures effective protection of fundamental rights, so it will
be all the easier for the Union to meet its obligations under the
ECHR since it will strengthen internally the protection of those
rights through the incorporation of the EU Charter of Fundamental
Rights in the EU treaties, by direct incorporation or by reference.
For the states as well as for the Union, the undertaking to comply
with an international instrument for the protection of human rights
does not make it unnecessary to improve this protection in the internal
order. On the contrary, such an undertaking encourages them to pursue
improvements.
V. The compatibility of accession with the requirements of EU law
i. The question of the autonomy of the EU legal order
Article 1 of Protocol No. 5 to the draft Reform Treaty provides:
“The agreement relating to the accession of the Union to the European Convention on the Protection of Human Rights and Fundamental Freedoms … provided for in Article [I-9, paragraph 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.”
By mentioning the need to “preserve the specific characteristics
of the Union and Union law”, this provision refers to the respect
due to the principle of autonomy of Union law. Consequently, when
an individual application is filed in accordance with Article 34
of the European Convention on Human Rights against the Union or
a member state, the party concerned must be identified in accordance
with the arrangements defined in Union law, under the ultimate control
of the Court of Justice.
On this point, paragraph 12 of the memorandum may create some
confusion. The paragraph discusses together, as if they were somehow
linked to one another, the question of the autonomy of the EU legal
order, and the question of whether accession of the EU to the ECHR
will result in one court being “superior” to the other. But these
questions are distinct and should be kept so. The “autonomy” referred
to does not mean that there are limits to which form of external
supervision the EU may submit to. Rather, this principle is derived from
the rule according to which the Court of Justice ensures observance
of the law in the interpretation and application of Union law as
well as from the rule according to which the member states undertake
not to submit a disagreement on the interpretation or application
of the EU treaties to any other mode of settlement than those provided
for by the EU treaties. The
Court of Justice saw in those provisions the expression of a general
principle, according to which the court itself must remain the ultimate
interpreter of the law of the Union, and more particularly the rules
in the EU treaties establishing the division of competences between
the Union and its member states. The principle of autonomy of the
Union’s legal order consequently rules out the Court of Justice’s
being bound by the interpretation which another court of law may
give of Union law. Situated according to Opinion No. 1/91 of 14
December 1991, this principle thus requires that questions of interpretation and
application of Union law cannot be settled according to procedures
outside the European Union, but only according to the rules of settlement
which the Union itself has instituted. Nevertheless,
this principle does not exclude all forms of international commitment
of the European Union that are placed under the control of an international
court outside the Community’s legal order.
In paragraph 13, the memorandum proposes that “an option to
avert possible contradictions between the case law of the two courts
might consist of inserting an explicit provision into the Court
of Justice and Court of First Instance (CFI) rules of procedure,
similar to Article 6 of the European Economic Agreement, which could stipulate
that EU/EC law should ‘without prejudice to future developments
… be interpreted in conformity with the relevant rulings’ of the
European Court of Human Rights”. This proposal should not be retained.
Its immediate effect would be to create the suspicion that the autonomy
of the EU legal order would be threatened by accession, thus further
confusing the issue of the requirements linked to the principle
of autonomy. Article 6 of the Agreement creating the European Economic
Area, it should be emphasised, did not state that the Court of Justice
would be bound by the interpretation given to EU law by another
judicial body. Had this been the case,
it would probably not have been compatible with the principle of
autonomy as explicated by the Court of Justice in the two opinions
it delivered on the EEA agreement. After accession, the European
Convention on Human Rights will be part of EU law, and, both as
a result of this and because this is prescribed by Article 52, paragraph
3, of the charter, the Court of Justice will apply the Convention
taking into account the case law of the European Court of Human
Rights. This is already its current
practice. No supplementary provision, in the rules of procedure
of the Union jurisdictions or elsewhere, are required for this to
continue. It is, of course, up to Union law to decide how – according
to which horizontal division of tasks between the institutions and vertical
division of competences between the EU member states and the Union
– the obligations resulting from the accession of the Union to the
ECHR should be implemented in the EU legal order. It may not be
appropriate for the Parliamentary Assembly of the Council of Europe
to prejudge the measures that will be taken, within the EU legal
order, for that purpose. The clause proposed, in addition, would
have the unfortunate consequence of suggesting that the Court of
Justice would in some way be subordinated to the European Court
of Human Rights, which it is not currently and which it will not
be even after accession.
On the other hand, it would perhaps be desirable for the memorandum
to address the question of whether the imposition by the European
Convention on Human Rights of positive obligations on the parties
may affect the neutrality of the accession of the European Union
to the ECHR as regards the division of competences between the Union
and the member states. The report on
the situation of fundamental rights in the Union in 2004 prepared
for the EU Network of Independent Experts on Fundamental Rights
states the following on this point:
“… the Union’s accession to the European Convention on Human Rights will not lead to any changes in the division of competences between the Union and the member states.
This position is also that of the European Convention’s Working
Group II on the EU Charter and accession to the ECHR in 2002-03. Of
course, in order to alleviate any fears that the doctrine of positive
obligations would result in an extension of the competences of the
Union beyond the principle of attribution (that is to say, beyond the
competences already attributed to the Union by the member states),
certain safeguards can be imagined. The most important of these
is to provide that in all cases where the application is filed against
an EU member state and/or against the Union, the Union or (when
the application is filed against the Union) any EU member state
should appear as co-defendant before the European Court of Human
Rights and they would be jointly responsible for the implementation
of any judgment finding a violation. This mechanism would also ensure
that the principle of autonomy of the EU legal order is preserved,
since the determination of which entity is responsible for the implementation
of the judgment will be decided according to procedures internal
to the EU legal order itself, under the ultimate supervision of
the Court of Justice.
ii. The status of the ECHR in EU law following accession
The memorandum, perhaps wisely, is silent about the status
that will be accorded to the European Convention on Human Rights
in Union law following accession. This may be adequate, since this
is a question for Union law to decide upon. However, on the other
hand, in order to avoid certain mistaken assumptions about what would
follow, for both the European Union and its member states, from
the Union’s acceding to the ECHR, certain clarifications could be
brought. According
to the case law of the Court of Justice, the provisions of international
agreements concluded by the Union and the acts adopted by the organs
set up under such agreements “from the time of their entry into
force form an integral part of the Community legal order”. The result is that the legislation
of the Union, like the national laws of the member states, must
take into account the provisions of such agreements, the Court of
Justice having the jurisdiction to ensure that they are respected. The
manner in which the national legal order of each member state defines
its relationships with public international law is in this respect
immaterial: uniform application of the agreement throughout the
Union rules out the ability of each member state to view the effects
of an international agreement in terms of its own national law.
The Court of Justice indicated in the Kupferberg judgment of 26
October 1982 that this was the result of the Community nature of
the provisions contained in an international agreement concluded
by the Community, which, from the time of its entry into force,
becomes part of Community law. The uniform application throughout
the Community of the provisions of such an international agreement
exclude that their effects can be made to vary according to whether
their application is a matter, in practice, for the Community institutions
or for the member states, and, in the latter case, according to
the attitude of each state towards the effects recognised by the
international agreements. In order
for an international agreement concluded by the Union to produce
direct effects – giving litigants subjective rights which they can
invoke before their national authorities or before a Community court
– “the spirit, the economy and the terms” of the agreement must
be examined. The European Convention
on Human Rights will be recognised this effect in EU law.
iii. The question of the external competences of the Union
In paragraph 17, the memorandum states the following:
“The Court of Justice’s Opinion No. 2/94 of 28 March 1996, holding that the EC did at the time not have the necessary competence to accede to the ECHR, may not be an insuperable obstacle. More than ten years have passed since it was given, during which time the political climate and legal interpretations concerning this issue have significantly changed, suggesting that if the Court of Justice were to revisit the question again today, it may come to an altogether different conclusion.”
It is a matter of political judgment whether or not it is
opportune for the Parliamentary Assembly of the Council of Europe
to take a position about what constitutes, in the final instance,
a question of interpretation of Union law. However, if this argument
is indeed put forward, perhaps it could be made more concrete, by
referring to the signature of Protocol No. 14 amending the European
Convention on Human Rights, which provides that the Union can accede
to this instrument. Although
Protocol No. 14 is still not in force and although its significance
with regards to the accession of the Union to the European Convention
on Human Rights is political rather than legal, since a subsequent
modification of the European Convention on Human Rights defining
the practical details of the Union’s accession to this instrument
will in any case be required, the agreement
on the text of this protocol demonstrates a strong political consensus,
within the member states of the Council of Europe, including all
the EU member states, to the accession of the Union to the Convention. This
background may indeed influence the interpretation of the external
competences of the Union by the Court of Justice, if and when it
is asked to deliver an opinion on this question. Emphasising
the significance, at political level, of the adoption of Protocol
No. 14 to the ECHR may be more advisable than to propose an interpretation
of Union law.
At a more fundamental level, I have taken the view elsewhere
that the adequacy of the classical case law of the Court of Justice
on the extent of the Community’s external powers would deserve to
be challenged, where the question of accession to an international
instrument protecting human rights is raised. By acceding to such instruments
protecting human rights the states parties undertake to respect
certain minimum standards for the benefit of the people under their
jurisdiction, which implies in the first place that they will not
adopt any measures that violate these standards. In so far as the
undertaking is purely negative (formulated as an obligation to abstain
from), it is irrelevant whether or not the parties have the competence
to take measures that implement the given standard. It is only where
the undertaking is also to adopt certain measures – to fulfil positive
obligations (to act) – that the question of competences may play
a role. The accession of the Union to international instruments
adopted in the field of human rights therefore does not necessarily
have to have an impact on the extent of its competences; quite the
contrary: such accession must in principle be considered neutral
from the point of view of the division of competences between the
Union and the member states. It is
anticipated, in fact, that a specific clause will recall this neutrality,
both in the protocol to the ECHR providing for the accession of
the EU and in the accession treaty, and in the Treaty on European
Union as revised by the Reform Treaty. This, however, results from the
very principle of attributed competences, according to which the
Union cannot exercise competences that it has not been attributed
by the member states, even for the sake of better complying with
obligations the Union has contracted on the international level.
VI. Other Council of Europe instruments
The committee should consider whether reference should be made, alongside the accession of the Union to the ECHR, to its accession to other international or European human rights instruments. Commenting on Article 9, paragraph 2, of the 2004 Treaty establishing a Constitution for Europe, which attributed the Union the competence to accede to the ECHR, the report on the situation of fundamental rights in the Union in 2004 prepared for the EU Network of Independent Experts on Fundamental Rights insisted that this provision should not and could not be interpreted a contrario:
“… the Union can accede to other international instruments for the protection of human rights.
After referring to the accession of the European Union to the ECHR, “The guidelines on the relations between the Council of Europe and the European Union” (Appendix 1 to the Action Plan adopted by the heads of state and government of the member states of the Council of Europe, meeting in Warsaw on 16 and 17 May 2005, CM(2005)80 final, 17 May 2005), states that: “Taking into account the competences of the European Community, accession to other Council of Europe conventions and involvement of Council of Europe mechanisms should be considered on the basis of a detailed review”. The Parliamentary Assembly might wish to reaffirm this as a mid-term goal.
VII. Conclusion
In sum, my proposals are the following:
a. the memorandum should be amended to take into account the political agreement reached on the text of a draft Treaty amending the Treaty on European Union and the Treaty establishing the European Community (draft Reform Treaty). In particular:
- the memorandum could express its concern that, according to Article 188n, paragraph 8, second sub-paragraph, of the proposed Treaty on the Functioning of the European Union, the conclusion of an agreement on the accession of the EU to the ECHR is treated as a constitutional question, requiring that each member state ratifies the agreement prior to its entering into force;
- the memorandum could confirm the view, which is that of the overwhelming majority of jurists, that the European Union in the present situation already has an international legal personality and the capacity to conclude international agreements;
- the memorandum could refer to the fact that, under the current EU/EC treaties, the legal protection of the individual may be insufficient, and his or her right to an effective remedy may not always be fully complied with, but welcome the fact that this situation will be significantly improved by the Treaty amending the Treaty on European Union and the Treaty establishing the European Community. It could remark in this respect that, while the improvement of the remedies available within the legal order of the European Union ensures that, in the vast majority of situations, any alleged violation of ECHR rights will be addressed within the EU legal order and according to legal procedures established by the EU treaties themselves, there remains a distinct advantage in organising an external judicial supervision of the compliance with human rights and fundamental freedoms;
b. the memorandum could strengthen its case in favour of accession of the European Union to the European Convention on Human Rights by mentioning the difficulties raised in the execution of the judgments of the European Court of Human Rights in cases involving Union law;
c. the memorandum could address more precisely the implications of the principle of autonomy of the European Union legal order. In particular:
- the memorandum could express the view that the reference to the “specific features” of the Union in the draft Reform Treaty should not be interpreted to preserve the doctrine of “equivalent protection”, currently relied upon by the European Court of Human Rights when it examines the compatibility of ECHR requirements and measures adopted by the EU member states when they implement Union law. This expression should only refer to the need to organise the processing of applications filed against the EU member states and/or the European Union, in order to take into account the characteristics of the division of competences between them which, in accordance with the principle of autonomy of the Union legal order, should be a matter resolved by Union law alone, under the supervision of the Court of Justice. It should not serve to otherwise preserve some form of “extra-conventionality” of the Union. Any attempt, in the negotiation of the accession treaty (or of a protocol to the European Convention on Human Rights providing for the accession of the EU), to restrict the degree of scrutiny that the European Court of Human Rights will be allowed to exercise on the European Union should be firmly opposed;
- no proposal should be made to insert an explicit provision into the Court of Justice and Court of First Instance (CFI) rules of procedure, similar to Article 6 of the Agreement creating the European Economic Area, stipulating that EU/EC law should “without prejudice to future developments … be interpreted in conformity with the relevant rulings” of the European Court of Human Rights. Such a proposal would raise fears about the impact of accession on the principle of autonomy of the legal order of the Union. It is up to Union law to decide how – according to which horizontal division of tasks between the institutions and vertical division of competences between the EU member states and the Union – the obligations resulting from the accession of the Union to the ECHR should be implemented in the EU legal order. It may not be appropriate for the Parliamentary Assembly of the Council of Europe to prejudge the measures that will be taken, within the EU legal order, for that purpose;
- the memorandum should clarify why the imposition of positive obligations on parties to the European Convention on Human Rights would not result in the accession of the Union’s threatening the autonomy of the Union legal order, since the identification of whether the Union or its member states should take action in order to fulfil those obligations will remain a matter for Union law alone to decide, under the supervision of the Court of Justice;
d. the memorandum should reaffirm that, taking into account the competences of the European Union, accession to Council of Europe conventions other than the European Convention on Human Rights and involvement of the Union in Council of Europe mechanisms should be considered.
Appendix to the contribution by Mr De Schutter – The contentious implementation of the Matthews judgment
When the 2002 Council Decision was adopted, amending the 1976 Act (Council Decision 2002/772/EC, Euratom of 25 June 2002 and 23 September 2002 amending the Act concerning the Election of the Representatives of the European Parliament by Direct Universal Suffrage, annexed to Decision 76/787/ECSC, EEC, Euratom, OJ L 283 of 21 October 2002, p. 1), the following declaration of the United Kingdom, reflecting a bilateral agreement concluded between that member state and the Kingdom of Spain, was formally recorded in the minutes of the Council meeting of 18 February 2002:
“Recalling Article 6 (2) of the Treaty on European Union, which states that the Union shall respect fundamental rights, as guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the member states, as general principles of Community law, the United Kingdom will ensure that the necessary changes are made to enable the Gibraltar electorate to vote in elections to the EP as part of and on the same terms as the electorate of an existing United Kingdom constituency, in order to ensure the fulfilment of the United Kingdom’s obligation to implement the judgment of the European Court of Human Rights in the case of Matthews v. the United Kingdom, consistent with the law of the European Union.”
The European Parliament (Representation) Act 2003 (EPRA 2003) adopted by the United Kingdom, however, provided (under Section 15) that all residents of Gibraltar above 18 years of age who were either a qualifying Commonwealth citizen or a citizen of the EU would be allowed to vote in the European Parliamentary elections. Spain considered that, by extending the right to vote in European Parliament elections, as provided for by the EPRA 2003, to persons who are not United Kingdom nationals for the purposes of Community law, the United Kingdom had violated its obligations under Community law. In July 2003, Spain therefore filed with the Commission a complaint pursuant to Article 227 of the Treaty establishing the European Community against the United Kingdom with a view to the Commission bringing infringement proceedings against the United Kingdom before the Court of Justice because of the alleged incompatibility of the EPRA 2003 with Community law. The Commission denied this request, stating that Annex I to the 1976 act must be interpreted in the light of the European Convention on Human Rights and that it is sufficiently open to enable the United Kingdom to include the Gibraltar electorate in the United Kingdom’s electorate in European Parliamentary elections, according to its national electoral system.
Spain then chose to file a direct action against the United Kingdom, alleging that the United Kingdom had violated its obligations under EC law by extending the right to vote in European elections to the residents of Gibraltar, who are not citizens of the United Kingdom. The Court of Justice rejected this claim in a judgment of 12 September 2006 (Case C-145/04, Kingdom of Spain v. the United Kingdom of Great Britain and Northern Ireland). It took the view that “in the current state of Community law, the definition of the persons entitled to vote and to stand as a candidate in elections to the European Parliament falls within the competence of each member state in compliance with Community law, and that Articles 189 EC, 190 EC, 17 EC and 19 EC do not preclude the member states from granting that right to vote and to stand as a candidate to certain persons who have close links to them, other than their own nationals or citizens of the Union resident in their territory”. As to the argument that the United Kingdom would be in breach of Annex I to the 1976 act and of the declaration of 18 February 2002, the Court of Justice considered that, in the light of the judgment of the European Court of Human Rights in Matthews v. the United Kingdom, “the United Kingdom cannot be criticised for adopting the legislation necessary for the holding of such elections under conditions equivalent, with the necessary changes, to those laid down by the legislation applicable in the United Kingdom” (paragraph 95).
Reporting committee: Committee on Legal Affairs and Human Rights.
Reference to committee: Doc. 11001 and Reference No. 3272 of 2 October 2006.
Draft resolution and draft recommendation adopted by the committee on 6 March 2008 with 1 vote against.
Members of the committee: Mrs Herta Däubler-Gmelin (Chairperson), Mr Christos Pourgourides, Mr Pietro Marcenaro, Mrs Nino Nakashidzé (Vice-Chairpersons), Mr Miguel Arias, Mr José Luis Arnaut, Mr Jaume Bartumeu Cassany, Mrs Meritxell Batet, Mrs Marie-Louise BemelmansVidec, Mrs Anna Benaki, Mr Luc Van den Brande, Mr Erol Aslan Cebeci, Mrs Ingrida Circene (alternate: Mr Boriss Cilevičs), Mrs Alma Čolo, Mr Joe Costello (alternate: Mr Terry Leyden), Mrs Lydie Err, Mr Valeriy Fedorov, Mr Aniello Formisano, Mr György Frunda, Mr Jean-Charles Gardetto, Mr József Gedei, Mr Valery Grebennikov, Mrs Carina Hägg, Mr Holger Haibach, Mrs Gultakin Hajiyeva, Mrs Karin Hakl, Mr Andres Herkel, Mr Serhiy Holovaty, Mr Michel Hunault, Mr Rafael Huseynov, Mrs Fatme Ilyaz, Mr Kastriot Islami, Mr Željko Ivanji, Mrs Iglica Ivanova, Mrs Kateřina Jacques, Mr Karol Karski, Mr András Kelemen, Mrs Kateřina Konečná, Mr Nikolay Kovalev (alternate: Mr Yuri Sharandin), Mr Eduard Kukan, Mr Oleksandr Lavrynovych, Mrs Darja Lavtižar-Bebler, Mrs Sabine Leutheusser-Schnarrenberger, Mr Humfrey Malins (alternate: Mr Christopher Chope), Mr Andrija Mandić, Mr Alberto Martins, Mr Dick Marty, Mr David Marshall, Mrs Assunta Meloni, Mr Morten Messerschmidt, Mrs Ilinka Mitreva, Mr Philippe Monfils, Mr Felix Müri, Mr Philippe Nachbar, Mr Fritz Neugebauer, Mr Tomislav Nikolić, Mr Anastassios Papaligouras, Mr Ángel Pérez Martínez, Mrs Maria Postoico, Mrs Marietta de Pourbaix-Lundin, Mr John Prescott, Mr Jeffrey Pullicino Orlando, Mr Valeriy Pysarenko, Mrs Marie-Line Reynaud, Mr François Rochebloine, Mr Francesco Saverio Romano, Mr Paul Rowen, Mr Armen Rustamyan, Mr Kimmo Sasi, Mr Ellert Schram, Mr Christoph Strässer, Mr Mihai Tudose (alternate: Mrs Florentina Toma), Mr Tuğrul Türkeş, Mrs Özlem Türköne, Mr Vasile Ioan Dănu Ungureanu, Mr Øyvind Vaksdal, Mr Egidijus Vareikis, Mr Klaas de Vries, Mrs Renate Wohlwend, Mr Marco Zacchera, Mr Krzysztof Zaremba, Mr Łukasz Zbonikowski, Mr Vladimir Zhirinovsky, Mr Miomir Žužul.
NB: The names of those members present at the meeting are printed in bold.
See 17th Sitting, 17 April 2008 (adoption of the draft resolution and draft recommendation); and Resolution 1610 and Recommendation 1834.