The accession of the European Union to the European Convention on Human Rights and Fundamental Freedoms

Common Market Law Review

Volumn 48, Issue 4, 2011, Pages 995-1023

  Jacqué, Jean Paul ^a  

^a NONE

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EID: 80051581504     PISSN: 01650750     EISSN: None     Source Type: Journal    
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References (70)

1. See for a brief overview of debates in the 20th century, Cohen-Jonathan, "Le problème de l'adhésion des Communautés européennes à la Convention européenne des droits de l'homme", in Mélanges en l'honneur de P.H. Teitgen (Pedone, 1984), p. 82.
2. Jacqué, "The Convention and the European Communities", in Macdonald, Matscher and Petzold (Eds.), The European System for The Protection of Human Rights (Nijhoff, 1993), p. 889.
3. Schermers, "The European Communities under the European Convention on Human Rights", (1978) LIEI, 1.
4. This shows that the omission of a reference to fundamental rights in the ECSC and EEC treaties was because, in the opinion of their authors, these were economic treaties, with no implications for the protection of fundamental rights. By contrast, when it came to founding a political community, the issue of protection of fundamental rights returned to the forefront. The same was true for the draft Treaty on European Union adopted in 1984, inspired by Spinelli. The draft provides that the Union recognizes the rights under the ECHR and will deliberate accession to the Convention within five years.
5. Denmark was anxious to avoid a referendum to ratify the Lisbon Treaty, and thus did not want to give the impression to its people that it was possible to extend the powers of the Union by a qualified majority. This precaution was not necessary, since Art. 6 specifically states that accession does not extend the powers of the Union.
6. See European Parliament hearing, Committee on Constitutional Affairs,, March 18, 2010, de Schutter, "L'adhésion de l'Union à la Convention européenne des droits de l'homme: feuille de route de la négociation", (2010) Revue trimestrielle des droits de l'homme, 535.
7. .
8. .
9. Discussion document of the Court of Justice of the European Union on certain aspects of the accession of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms.
10. For example, see Opinion 1/09, 8 March 2011, nyr, on the proposed agreement on a European patent court and a Community patent, which is not unrelated to our topic, as the Court says in para 76 that "an international agreement may affect its own powers provided that the indispensable conditions for safeguarding the essential character of those powers are satisfied and, consequently, there is no adverse effect on the autonomy of the European Union legal order." One can see in this a warning to the negotiators on accession of the Union to the ECHR.
11. See also Lock, "Walking on a tightrope: The draft ECHR accession agreement and the autonomy of the EU legal order", in this Review.
12. The content of the mandate has not been made public. For its part, the European Parliament voted in a resolution of 19 May 2010, see .
13. Under Art. 218(6)(a)(ii) TFEU the Parliament must give its consent.
14. This paper is based on the actual results of the negotiations at the end of June 2011. The end of the negotiations had been set at July 2011.A provisional version of the final agreement has been agreed by the negotiating group on 24 June 2011, CDDH-UE(2011)16 prov. The final text will be transmitted to the Steering Committee for Human Rights for discussion in October.
15. See the website of the Council of Europe, under Law and Policy of Human Rights .
16. May 29, 1974, BVerfGE 37, 271.
17. O.J. 1977, C 103.
18. O.J. 1989, C 120/51.
19. "Western Europe would be split further. The creation for a more modern codification for the Community alone would further isolate the others members of The Council of Europe. A separate, more modern codification of human rights by its most important partners would be fatal for the European Convention, the results of which wave been so far sufficiently outstanding that such silent termination would be unjustified.".
20. "It should be clearly stated from the outset that accession of the European Communities to the ECHR does not form an obstacle to the preparation of a special Community catalogue, nor does it prevent in any way the Court of Justice of the European Communities from further developing its exemplary case law on the protection of fundamental rights" Memorandum of 4 April 1979, Bulletin of the European Communities, supp. 2/79, para 8.
21. Case 4/73, Nold [1974] ECR 491, refers generally to indications drawn from international instruments. Similarly, six years later Case 136/79, Panasonic, [1980] ECR 2033, refers to both the common constitutional traditions and the international instruments to which Member States "collaborated or of which they are signatories".
22. "Taken as a whole, these limitations placed on the powers of Members States. are a specific manifestation of the more general principle enshrined in. the Convention for the protection of human rights and fundamental freedoms. ratified by all Member States .", Case 36/75, Rutili, [1975] ECR 1219.
23. Case 44/79, Hauer, [1979] ECR 3727: "The Court also emphasized in the judgment cited, and later in the judgment of 14 May 1974, Nold [1974] ECR 491, that fundamental rights form an integral part of the general principles of the law, the observance of which it ensures; that in safeguarding those rights, the Court is bound to draw inspiration from constitutional traditions common to the Member States, so that measures which are incompatible with the fundamental rights recognized by the constitutions of those States are unacceptable in the Community; and that, similarly, international treaties for the protection of human rights on which the Member States have collaborated or of which they are signatories, can supply guidelines which should be followed within the framework of Community law. That conception was later recognized by the joint declaration of the European Parliament, the Council and the Commission of 5 April 1977, which, after recalling the case-law of the Court, refers on the one hand to the rights guaranteed by the constitutions of the Member States and on the other hand to the European Convention for the Protection of Human Rights and Fundamental Freedoms ."
24. See e.g. the Order in Case C-17/98, Emesa Sugar, [2000] ECR 615.
25. Case C-105/03, Pupino, [2005] ECR I-5285.
26. See e.g. Case C-465/07, Elgafaji, [2009] ECR 1921, para 28.
27. Schermers, "The European Communities bound by Fundamental Human Rights", 27 CML Rev. (1990), 249.
28. Judgment of 18 Feb. 1999 (Appl. No. 24833/94) Matthews v. United Kingdom.
29. Judgment of 30 June 2005, Grand Chamber, Bosphorus Hava Yollari Turizm Ve Ticaret Anonim Sirketi v. Ireland (Appl. No. 45036/98).
30. Case C-145/04, Spain v. United Kingdom, [2006] ECR 7917.
31. See Spielman, "Human rights case law in the Strasbourg and Luxembourg Courts: Conflicts, inconsistencies and complementaries", in Alston (Ed.) The EU and Human Rights (OUP, 1999), p. 757.
32. Tizzano, « La protection des droits fondamentaux/Dialogues croisés entre juridictions européennes et nationales », in Bribosia, Scheeck and Ubeda de Torres (Eds.), L'Europe des Cours, Loyautés et résistances (Bruylant, 2010), p. 289.
33. Pescatore, The Court of Justice of the Communities and the European Convention on Human Rights, Mélanges Wiarda, (Karl Heyman Verlag, 1988), p. 457.
34. Case 21/72, International Fruit, [1972] ECR 1219.
35. These issues are addressed in a memorandum from the Commission to the Working Group, SEC(93)1679.
36. Opinion 2/94, [1996] ECR 1759. The Opinion was given during the negotiation of the Treaty of Amsterdam, but it hardly encouraged participants to support the Belgian proposal for accession.
37. This concept is clear in theory, although in practice less so. See on the question of scope e.g. Editorial comment, The scope of application of the general principles of Union law: An ever expanding Union? in 47 CML Rev., 1589.
38. This solution would make sense since the purpose of these provisions is to avoid differences of interpretation between the Charter and the Convention. The aim is not to impose on the EU respect of rights which are not guaranteed, but to interpret the rights enshrined in the Charter in harmony with the Convention and its protocols. If similar rights are contained in both instruments (Charter on the one hand, the Convention and protocols on the other), the rules of Arts. 52 and 53 should be applicable regardless of the scope of accession.
39. Grand Chamber, 2 May 2007, Decision on Appl. No. 71412/01, Agim Behrami and Bekir Behrami v. France and Appl. No. 78166/01, Ruzhdi Saramati v. France, Germany and Norway. In this case, the ECtHR adopts a position on the UN that could be transposed to the European Union, denying responsibility of Member States: "The Court, however, considers that the circumstances of the present cases are essentially different from those with which the Court was concerned in the Bosphorus case. In its judgment in that case, the Court noted that the impugned act (seizure of the applicant's leased aircraft) had been carried out by the respondent State authorities, on its territory and following a decision by one of its Ministers (§ 137 of that judgment). The Court did not therefore consider that any question arose as to its competence, notably ratione personae, vis-à-vis the respondent State despite the fact that the source of the impugned seizure was an EC Council Regulation which, in turn, applied a UNSC Resolution. In the present cases, the impugned acts and omissions of KFOR and UNMIK cannot be attributed to the respondent States and, moreover, did not take place on the territory of those States or by virtue of a decision of their authorities. The present cases are therefore clearly distinguishable from the Bosphorus case in terms both of the responsibility of the respondent States under Article 1 and of the Court's competence ratione personae. There exists, in any event, a fundamental distinction between the nature of the international organisation and of the international cooperation with which the Court was there concerned and those in the present cases. As the Court has found above, UNMIK was a subsidiary organ of the UN created under Chapter VII and KFOR was exercising powers lawfully delegated under Chapter VII of the Charter by the UNSC. As such, their actions were directly attributable to the UN, an organisation of universal jurisdiction fulfilling its imperative collective security objective". However, if the Union becomes a contracting party, the jurisdiction of the Strasbourg Court will be extended to CFSP operations.
40. Certainly, in Behrami, the ECtHR declared the application inadmissible ratione personae, but the UN was in control of the activities complained of and the Court justified its position by including the role of the Security Council in maintaining peace and security, under Art. 103 of the UN Charter; these are arguments that cannot play a role for the benefit of the European Union.
41. See infra section 5.
42. CDDH-UE(2011)10 and Art. 3(3) in CDDH-UE(2011)16 prov.
43. Sperduti, "Comment concevoir dans sa spécificité l'adhésion des Communautés européennes à la Convention de Rome sur la sauvegarde des droits de l'homme", in Etudes en l'honneur d'Herman Mosler (Heidelberg, 1983), p. 903.
44. "The agreement relating to the accession of the Union to the European Convention on the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as the 'European Convention') provided for in Article 6(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."
45. Tulkens, "L'adhésion de l'Union européenne à la Convention européenne des droits de l'homme. Pour et vers une organisation harmonieuse", (2011) RTDE, 27.
46. See in particular resolution 1646 (2009) Assembly.
47. Screening of the candidates by the Committee on Legal Affairs and Human Rights.
48. An agreement has been concluded between the Chairperson of the Council of Europe's Committee on Legal Affairs and Human Rights and the Chairperson of the European Parliament's Committee on Constitutional Affairs on 15 June 2011.
49. This agreement will be submitted for approval to the Parliamentary Assembly of the Council of Europe and to the European Parliament .
50. For decisions adopted by simple majority, a simple majority of non-Member States in favour will be sufficient. For decisions adopted by a two-thirds majority, a majority of two-thirds of non-Member States in favour will be sufficient.
51. Opinion 1/91, [1991] ECR I-6079.
52. The Court confirmed this in its Opinion 1/09: "74. As regards an international agreement providing for the creation of a court responsible for the interpretation of its provisions, the Court has, it is true, held that such an agreement is not, in principle, incompatible with European Union law. The competence of the European Union in the field of international relations and its capacity to conclude international agreements necessarily entail the power to submit itself to the decisions of a court which is created or designated by such agreements as regards the interpretation and application of their provisions (see Opinion 1/91, paragraphs 40 and 70)", Opinion 1/09 of the Court (Full Court), 8 March 2011, nyr.
53. ". 34 This means that, when a dispute relating to the interpretation or application of one or more provisions of the agreement is brought before it, the EEA Court may be called upon to interpret the expression 'Contracting Party'. in order to determine whether, for the purposes of the provision at issue, the expression 'Contracting Party' means the Community, the Community and the Member States, or simply the Member States. Consequently, the EEA Court will have to rule on the respective competences of the Community and the Member States as regards the matters governed by the provisions of the agreement. 35 It follows that the jurisdiction conferred on the EEA Court. is likely adversely to affect the allocation of responsibilities defined in the Treaties and, hence, the autonomy of the Community legal order, respect for which must be assured by the Court of Justice ." Opinion 1/91.
54. "Although, under Article 6 of the agreement, the EEA Court is under a duty to interpret the provisions of the agreement in the light of the relevant rulings of the Court of Justice given prior to the date of signature of the agreement, the EEA Court will no longer be subject to any such obligation in the case of decisions given by the Court of Justice after that date. Consequently, the agreement's objective of ensuring homogeneity of the law throughout the EEA will determine not only the interpretation of the rules of the agreement itself but also the interpretation of the corresponding rules of Community law. It follows that in so far as it conditions the future interpretation of the Community rules on free movement and competition the machinery of courts provided for in the agreement conflicts with Article 164 of the EEC Treaty and, more generally, with the very foundations of the Community" Opinion 1/91, paras. 44-46.
55. Grand Chamber judgment of 21 Jan. 2011, Appl. No. 30696/09.
56. "The Court reiterated in that case that the Convention did not prevent the Contracting Parties from transferring sovereign powers to an international organisation for the purposes of cooperation in certain fields of activity (see Bosphorus, cited above, § 152). The States nevertheless remain responsible under the Convention for all actions and omissions of their bodies under their domestic law or under their international legal obligations. State action taken in compliance with such legal obligations is justified as long as the relevant organisation is considered to protect fundamental rights in a manner which can be considered at least equivalent to that for which the Convention provides. However, a State would be fully responsible under the Convention for all acts falling outside its strict international legal obligations, notably where it exercised State discretion. The Court found that the protection of fundamental rights afforded by Community law was equivalent to that provided by the Convention system. In reaching that conclusion it attached great importance to the role and powers of the ECJ - now the CJEU - in the matter, considering in practice that the effectiveness of the substantive guarantees of fundamental rights depended on the mechanisms of control set in place to ensure their observance. The Court also took care to limit the scope of the Bosphorus judgment to Community law in the strict sense - at the time the 'first pillar' of European Union law. The Court notes that Article 3 § 2 of the Dublin Regulation provides that, by derogation from the general rule set forth in Article 3 § 1, each Member State may examine an application for asylum lodged with it by a third-country national, even if such examination is not its responsibility under the criteria laid down in the Regulation. This is the so-called 'sovereignty' clause. In such a case the State concerned becomes the Member State responsible for the purposes of the Regulation and takes on the obligations associated with that responsibility. The Court concludes that, under the Regulation, the Belgian authorities could have refrained from transferring the applicant if they had considered that the receiving country, namely Greece, was not fulfilling its obligations under the Convention. Consequently, the Court considers that the impugned measure taken by the Belgian authorities did not strictly fall within Belgium's international legal obligations. Accordingly, the presumption of equivalent protection does not apply in this case." (paras. 338-340).
57. In its observations, the Italian delegation proposes a more comprehensive formula for triggering the mechanism: "if the alleged violation refers directly or indirectly to the implementation (of an act or measure) (of a provision of the judicial system) of the Union" CDDH-UE (2011)09.
58. According to the March text, the ECtHR was to assess "whether the reasons stated by the High Contracting Parties concerned are not manifestly incomplete or inconsistent", cf. Report of 6th working meeting of the CDDH informal working group, 15-18 March 2011, CDDH-EU (2011) 06 p. 12. The text agreed in May is in CDDH-UE (2011)10.
59. It seems that the explanatory report will indicate that joint responsibility will be the rule.
60. As it said recently in a decision on admissibility (W. v. The Netherlands, Appl. No. 20689/08, 20 Jan. 2009): "The Court reiterates that it is primarily for the national authorities, notably the courts, to interpret and apply domestic law. More specifically, it is not for the Court to rule on the validity of national laws in the hierarchy of domestic legislation (see also Kruslin v. France, 24 April 1990, § 29,Series A no. 176-A). This also applies where international treaties are concerned; it is for the implementing party to interpret the treaty, and in this respect it is not the Court's task to substitute its own judgment for that of the domestic authorities, even less to settle a dispute between the parties to the treaty as to its correct interpretation (see Slivenko v. Latvia [GC], no. 48321/99, § 105, ECHR 2003-X)." This obligation is recalled in the Conclusions of the High Level Conference on the future of the ECtHR (19 Feb. 2010) in Interlaken: "The Conference, acknowledging the responsibility shared between the States Parties and the Court, invites the Court to: a) avoid reconsidering questions of fact or national law that have been considered and decided by national authorities, in line with its case-law according to which it is not a fourth instance court. "Available through See also the Izmir declaration (adopted on 27 April 2011 at the High level Conference on the future of the European Court of Human Rights) where the contracting parties recall "that the Court is not an immigration Appeals Tribunal or a Court of fourth instance", available through . But it not evident that the Court will always respect this principle. In a recent case, the Court has questioned the interpretation of national law given by the Greek Court of Cassation, based on its own analysis and on dissenting opinions of Greek judges; 3 May 2011, Negropontis-Giannisis, Appl. No. 56759/08.
61. Discussion document of the Court of Justice of the European Union on certain aspects of the accession of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms, 5 May 2010.
62. European Convention, Working Group II Working Document 19 of 27 Sept. 2002 (Hearing of Judge Mr. Vassilios Skouris - 17 Sept. 2002). He added: "For those reasons I think that if the EU becomes a party to the ECHR it will be unnecessary to determine the respective roles of the Court of Justice and of the European Court of Human Rights or to regulate relations between the two courts, even if the Charter becomes binding law. The suggestion that the Court of Justice should refer such cases to the European Court of Human Rights would involve an unreasonable complication and slow down the procedure for the former court, the more so if the reference to the European Court of Human Rights were made in the context of a reference for a preliminary ruling to the Court of Justice.".
63. "Since it can hardly be envisaged that the Strasbourg organs would themselves refer questions to the Court of Justice, it would appear appropriate to introduce a procedure whereby the Community is obliged, in cases where the compatibility of a Community act with the ECHR is in question, to ask the Court of Justice for an opinion before it submits its own conclusions and to transmit this opinion together with its observations to the Strasbourg organs. This procedure should be employed both in the case of clear failure by national courts of last instance to comply with the third paragraph of Article 177 of the EEC Treaty and in the case of applications by nonmember countries which, for their part, when they are in doubt as to the conformity of a Community act with fundamental rights do not have the opportunity to make a reference to the Court of Justice."
64. Case 314/85, Foto-Frost, [1987] ECR 4199.
65. Case 283/81, CILFIT, [1982] ECR 3415.
66. Discussion document of the Court of Justice, 5 May 2010.
67. Hearing before the Constitutional Affairs Committee of the European Parliament, 18 March 2010.
68. "In order that the principle of subsidiarity may be respected also in that situation, a procedure should be put in place, in connection with the accession of the EU to the Convention, which is flexible and would ensure that the CJEU may carry out an internal review before the ECHR carries out external review. The implementation of such a procedure, which does not require an amendment to the Convention, should take account of the characteristics of the judicial review which are specific to the two courts. In that regard, it is important that the types of cases which may be brought before the CJEU are clearly defined. Similarly, the examination of the consistency of the act at issue with the Convention should not resume before the interested parties have had the opportunity properly to assess the possible consequences of the position adopted by the CJEU and, where appropriate, to submit observations in that regard to the ECHR, within a time-limit to be prescribed for that purpose in accordance with the provisions governing procedure before the ECHR. In order to prevent proceedings before the ECHR being postponed unreasonably, the CJEU might be led to give a ruling under an accelerated procedure." Available on the Curia website, under "Discussion documents".
69. "In contrast, it is unacceptable that the answers which the Court of Justice gives to the courts and tribunals in the EFTA States are to be purely advisory and without any binding effects. Such a situation would change the nature of the function of the Court of Justice as it is conceived by the EEC Treaty, namely that of a court whose judgments are binding. Even in the very specific case of Article 228, the Opinion given by the Court of Justice has the binding effect stipulated in that article."
70. See the text proposed at the negotiation meetings in May and June: "In proceedings to which the European Union is co-respondent, if the Court of Justice of the European Union has not yet assessed the compatibility with the Convention rights at issue of the provision of European Union law as under paragraph 2, then sufficient time shall be afforded for the Court of Justice of the European Union to make such an assessment and subsequently for the parties to make observations. The European Union shall ensure that such assessment is made quickly so that the proceedings before the European Court of Human Rights are not unduly delayed. This paragraph does not affect the powers of the Court." CDDH-UE (2011)10 and CDDH-UE (2011)16 prov.