February 1, 2012
With the ratification of the Lisbon Treaty all Member States agreed that the EU should become a High Contracting Party to the European Convention on Human Rights (ECHR). In light of this obligation it is alarming that the accession is currently being sidetracked by political objections from the UK and France. On 25 January 2012, Representatives of the Parliamentary Assembly of the 47-nation Council of Europe (PACE) and the European Parliament have urged national governments – notably the UK and France – not to stand in the way of the EU signing up to the European Convention on Human Rights.
In the light of these appeals it is worth recalling at what stage are the negotiations on the EU accession to the ECHR. This question was addressed during a conference in Brussels, organized by the Academy of European Law.
The legal obligation to accede to ECHR is enshrined in article 6 of the Treaty on EU. On the side of the Council of Europe this goal is mirrored in Protocol No. 14 to ECHR that entered into force on 1 June 2010 which amended Article 59 of ECHR, however the reflection is not identical: while the EU according to its primary law is legally obliged to become a party to the ECHR, the CoE law only created an opportunity for that to take place.
During the conference it was highlighted by all speakers that the appearance of these provisions in two legal orders was not triggered by an impulse, but is an effect of a long process which started already in the seventies, when the talks about the Community becoming one of the High Contracting parties commenced.
This became even more urgent with the gradual transference of sovereign powers to the Community and, later, to the Union, which was accompanied by the transference of the responsibility. The result was that certain acts, which have direct effect on the situation of an individual, escape the scrutiny of the Strasbourg court. The accession would be a remedy to this situation.
After the legal basis was created, the Council of Europe’s Committee of Ministers asked the Steering Committee for Human Rights (CDDH) to draft the modalities of the accession. The negotiations took place within an informal working group equally composed of experts representing EU member states and non-EU member states, together with the European Commission which has a negotiating mandate from 27 EU member states.
It has been decided that the accecion of the EU to the ECHR will be based on a international treaty between all 47 Council of Europe member states that will enter into force upon ratification by all parties. As a result of the treaty the EU will accede to the ECHR and for the time being to the protocols which all EU member states are parties to (Protocols Nos 1 and 6 to the ECHR). The ECHR will be amended accordingly.
Negotatitons were based on the following principles: firstly, the EU should join as the 48th High Contracting Party on an equal footing with the other 47 Parties; secondly the existing ECHR mechanisms should be changed as little as possible; thirdly EU accession should be to the advantage of applicants, not to their detriment. The accession of the EU shall not affect its competences or powers of its institutions.
According to Dr Hannes Kramer, who is the EU Chief Negotiator on Accession to the ECHR, one of the most difficult issues during the negotiatiots was the so called co-respondent mechanim that will allow the EU to become a co-respondent in proceedings against an EU member state, or vice-versa. Second controversial aspect was ensuring prior-involvement of the Luxembourg court in the Stasbourg proceedings in cases in which the ECtHR will rule on conformity of an EU acts with human rights without the Court of Justice of the European Union had no previous possibility to do so.
At the same time, professor Christiaan W. A. Timmermans recalled that the relation between the two legal order already has a long history. The provisions of the Conventions have constituted the principles of the EU law. The relationship is also reflected in the dialogue between the two Courts – the Luxembourg and the Strasbourg. This takes the form of a dialogue of the case law, as well as the dialogue of the judges, both formal and informal. Thus, it should be once again highlighted that the accession of the EU to the Convention is a natural and logical consequence and result of a certain process and not an exotic idea that appeared out of nowhere.
Daniele Cangemi, the Head of the Human Rights Law and Policy Division, summed up the current stage of negotiations. The technical negotiations are finished and the draft accession agreement is ready. Next stage will be the adoption of the agreement by the Steering Committee for Human Rights, consultation of the CoE Parliamentary Assembly. Further on, the ECJ will be asked for an opinion whether the agreement does not violate the EU primary law. If the opinion is positive and the Committee of Ministers adopts the agreement, it will become open for signature for the 47 member states of the Council of Europe and the EU.
In this context it is also worth reminding that sidetracking the EU accession to the ECHR by governments violates the principle of sincere cooperation (art. 4 of the Treaty on European Union), according to which the Union and the Member States shall in full mutual respect, assist each other in carrying out tasks which flow from the Treaties. According to the Treaty the Member States shall take any appropriate measure to ensure fulfillment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union. In addition the Treaty obliges the Member States to facilitate the achievement of the Union’s tasks and refrain from any measure which could jeopardize the attainment of the Union’s objective.
The accession to the ECHR is undoubtedly a task flowing from the Treaties. Therefore, in light of the principle of sincere cooperation any attempt to obstruct it should be condemned.
Zuzanna Warso, lawyer at Europe of Human RightsAuthor : Europe of Human Rights