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Negotiations for the accession of the EU to the ECHR

18/10/2021 - 14:33
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Accession of the European Union to the European Convention on Human Rights has been an objective of the EU for many years and would be an important milestone in the protection of human rights and fundamental freedoms across Europe.

Palais de l'Europe in Strasbourg, France, the seat of the Council of Europe since 1977 | © Council of Europe

 

In 2013, negotiators for each of the 47 Member States of the Council of Europe and for the European Union reached an agreement on the EU’s accession to the ECHR. However, in its Opinion 2/13 of 18 December 2014, the Court of Justice of the EU held that the draft agreement of 2013 was incompatible with the EU Treaties. Therefore, the agreement would have to be amended based on the issues raised in the Opinion in order to make accession possible for the EU.

In September 2020, negotiations for the accession of the EU to the ECHR were relaunched. The most recent negotiating meeting took place on 5-8 October 2021. The next meeting is scheduled to take place on 7-10 December 2021.

What is the Union’s objective in these negotiations?

The aim of the Union is to make EU accession to the European Convention on Human Rights legally possible in a manner that benefits applicants and strengthens the protection of fundamental rights in Europe.

 

What will change for citizens when the EU accedes to the Convention?

The EU’s accession to the Convention means that the EU will become subject to international oversight by the European Court of Human Rights, just like its 27 Member States and the 20 other members of the Council of Europe.

At present, all 47 Council of Europe member states, including the 27 EU Member States, are already parties to the European Convention on Human Rights. However, the EU itself is not. This means that actions of the EU’s institutions, agencies and other bodies cannot currently be challenged at the European Court of Human Rights in Strasbourg. Accession will make it possible for individuals to bring cases before the European Court of Human Rights against the EU.

Accession will also make it possible for the EU to be held accountable alongside its Member States in situations where an EU Member State implements EU law. At present, when a Member State implements EU law, the European Court of Human Rights can, if it finds a violation, only convict that Member State. After accession, the EU will be able to participate in court proceedings brought against a Member State. If the European Court of Human Rights then finds a violation, the EU will be convicted together with its Member State and must help remedy the situation.

 

What else will change when the EU accedes to the Convention?

The EU’s accession to the Convention will also bring the following changes:

  • the EU will be able to nominate a judge to the European Court of Human Rights;
  • a delegation of the European Parliament will be entitled to participate with a right to vote when the Parliamentary Assembly of the Council of Europe elects judges to the European Court of Human Rights;
  • the EU will be entitled to participate with a right to vote in certain activities of the Committee of Ministers of the Council of Europe, in particular when that body supervises the enforcement of judgments or friendly settlements;
  • the EU will be required to contribute to the overall costs of the Convention system.

 

What makes EU accession to the Convention so complex?

The main technical challenge is to achieve accession in a manner that respects, on the one hand, the basic features of the Convention and, on the other, the basic features of the European Union.

The Convention was written with State parties in mind. The European Union is not a state, even though it has its own powers, its own institutions, and its own EU-wide legal system with its own highest court. This means that the system of oversight established by the Convention requires certain adaptations insofar as it will apply to the EU.

Moreover, EU accession to the Convention will involve a unique situation of overlap: the EU as well as each EU Member State will be party to the Convention. In some cases the EU would be accountable under the Convention in the event of a breach of human rights, in some cases a Member State would be accountable, and in some cases the EU and one or more Member States would be accountable together – depending on the circumstances and on the division of powers between the EU and its Member States. This too requires certain bespoke adaptations.

Negotiators for each of the 47 Member States of the Council of Europe and for the European Union thought they had resolved these challenges in the draft accession agreement reached in 2013. However, in its Opinion 2/13 of 18 December 2014, the European Court of Justice ruled that that agreement did not yet sufficiently take into account the specific characteristics of the European Union.

 

Which amendments to the draft accession agreement are required according to Opinion 2/13 of the European Court of Justice?

  • The co-respondent mechanism and the prior involvement procedure. The accession agreement must ensure that, when applying these EU-specific mechanisms, the European Court of Human Rights (ECtHR) does not interfere with the division of competences between the Union and the Member States and that, more generally, it does not bind the EU and its institutions to a particular interpretation of the rules of EU law or of the case-law of the Court of Justice.
  • The operation of inter-party apaplications (Art. 33 ECHR) and of references for an advisory opinion (Protocol 16). The accession agreement must ensure that the inter-party procedure does not undermine the Court of Justice’s exclusive jurisdiction for disputes between Member States (or between a Member State and the EU) concerning the interpretation or application of Union law. The accession agreement must avoid that the advisory opinion procedure of Protocol 16 could potentially allow national courts to circumvent the preliminary reference procedure provided for in Article 267 TFEU.
  • The preservation of the principle of mutual trust. The accession agreement must ensure that Member States will not be obliged to check that another Member State has observed fundamental rights if EU law imposes an obligation of mutual trust between those Member States. This is particularly relevant for cross-border cooperation within the EU in the area of freedom, security and justice.
  • Jurisdiction with respect to acts in the area of the Common Foreign and Security Policy (“CFSP”). Under the Treaties, certain EU acts adopted in the context of CFSP fall outside the ambit of judicial review by the Court of Justice. At the same time, the jurisdiction to carry out review of such acts in the light of fundamental rights cannot be conferred exclusively to an international court which is outside the institutional and judicial framework of the EU. The accession agreement must have regard to these specific characteristics of EU law.

 

What is the scope of the current negotiations?

The Union would like the negotiations to focus on how to address the concerns raised by the Court of Justice in Opinion 2/13. The Union proposes making certain targeted modifications to the draft accession agreement of 2013 in order to address the Court of Justice’s concerns.

 

Who is negotiating on behalf of the European Union and its Member States?

The European Commission negotiates on behalf of the European Union. The Commission regularly consults with the Council. The European Parliament is kept immediately and fully informed.

The EU Member States also have delegates in the 47+1 Group, because each EU Member State is a member of the Council of Europe.

 

Who else participates in the negotiations?

The 47+1 Group also comprises delegates of the 20 non-EU member states of the Council of Europe: Albania, Andorra, Armenia, Azerbaijan, Bosnia and Herzegovina, Georgia, Iceland, Liechtenstein, Moldova, Monaco, Montenegro, North Macedonia, Norway, Russian Federation, San Marino, Serbia, Switzerland, Turkey, Ukraine and the United Kingdom.

In addition, two bodies participate in the negotiations as observers:

    • the Registry of the European Court of Human Rights; and
    • the Directorate of Legal Advice and Public International Law of the Council of Europe.

 

Do civil society organisations contribute to the negotiations?

Yes. The 47+1 Group consults with civil society organisations. It has exchanged views with representatives of the following organisations:

    • the Advice on Individual Rights in Europe (AIRE) Centre;
    • Amnesty International;
    • the Council of Bars and Law Societies of Europe (CCBE);
    • the European Network of National Human Rights Institutions (ENNHRI); and
    • the International Commission of Jurists (ICJ).

 

What is the procedure for ratification and entry into force of the accession agreement?

The 47+1 Group must first finish with the negotiations. The result will then be sent to the Committee Ministers of the Council of Europe. Once the text has been adopted by the Committee of Ministers, it will be opened for signature.

An EU Member State, the European Parliament, the Council or the Commission may obtain the opinion of the Court of Justice as to whether the accession agreement is compatible with the EU Treaties. If the opinion is positive, the European Union may conclude the agreement.

For the European Union, ratification (or rather ‘conclusion’) of the accession agreement implies a decision of the Council that must be adopted by unanimity with the consent of the European Parliament.

National parliaments will play a decisive role: the decision to conclude the accession agreement on behalf of the Union can only enter into force once each EU Member State has ratified the accession agreement in accordance with its national constitutional requirements.

The accession agreement enters into force after the European Union and all Parties to the European Convention on Human Rights have ratified it.

 

Is information about the negotiations publicly available?

Meeting reports and various other documents related to the negotiations are publicly available on the website of the Council of Europe.

The 47+1 Group holds its meetings behind closed doors and access to certain negotiating documents is restricted for the time being, to protect the serenity of the negotiations.

 

How long are the current negotiations expected to last?

At this stage, it is difficult to say how long the negotiations will last. The most important thing is that the negotiators keep making progress towards a good result.

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