Thursday, 11 April 2013
European Union accession to the European Convention on Human Rights
Article 6(2) of the Treaty on European Union states that the Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms. Art 6(3) of the Treaty states that fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union's law.
At present, Art 6(3) operates to make the rights in the E Conv HR general principles of EU law. This is reflective of what occurred through the influence of the European Court of Justice - now the Court of Justice of the EU (CJEU). A useful analysis of how the court has embraced human rights may be read at Human Rights and the European Court of Justice - Elizabeth Defeis, Fordham Journal of International Law 2007 Vol 31 Article 2.
Art 6(2) will take matters further by making the EU itself a signatory to the E Conv HR.
Since the Lisbon Treaty (in force 1st December 2009) there have been negotiations regarding the implementation of Art 6(2) and the outcome is a Draft agreement on accession to the European Convention - (pdf 35 pages). In fact, there is a package of documents: the draft agreement; a draft declaration by the EU; a draft rule to be added to the rules of the Council of Europe's Committee of Ministers relating to the supervision and execution of judgments and the terms of friendly settlements to which the EU is a party; a draft Memorandum of Understanding and an Explanatory report. The verbose Explanatory material commences on Page 16 (Annex V) of the draft documentation.
Further steps have been recommended before accession of the EU to the convention can take place. These include obtaining an opinion of the Court of Justice of the EU on the compatibility of the draft agreement with the EU Treaties and, secondly, that the Council of the EU adopt unanimously the decision authorising signature of the Accession Agreement.
On the UK Human Rights Blog (8th April) David Hart QC looked at - How the ECtHR is indeed going to watch the EU. Hart points out that an individual applicant will be able to take the EU (as well as a Convention country) to the ECtHR arguing infringement, by the EU, of the applicants human rights. Furthermore, the EU may become a party, where the alleged violation in the case calls into question the compatibility of an EU law with a Convention right. Hence, it will be Strasbourg which has the final say on the compatibility with the Convention of EU actions.
Clearly, this raises the possibility of conflict between the ECtHR and the CJEU - possibly a lucrative fountain for lawyers who practise at this level. The draft agreement contains some provisions aimed at addressing such conflicts - should they arise. In essence, the CJEU will be given the opportunity to give judgment first on the compatibility of the EU law with the ECHR. The CJEU's opinion will not bind the ECtHR.
This is a subject to which we shall doubtless return. If unanimity is required, one wonders whether the UK government will be all that keen to agree given (a) the anti-European Convention and anti-EU rhetoric from some senior Ministers and (b) the likely timescale and costs inherent in the process if a case is to go from the CJEU at Luxembourg to the ECtHR at Strasbourg. Other useful links are:
Council of Europe - Reasons for EU accession to the Convention
ECHR Blog - Accession of EU to ECHR Draft agreement: Finally Finalised
European Judicial Training Network -EU accession to the European Convention on Human Rights
Francoise Tulkens 1st March 2013 - former Judge of the European Court of Human Rights
Joshua Rozenberg - Law Society Gazette 15th April - EU accession to the ECHR will change the European legal framework