EU Accession to the ECHR: Between Autonomy and Adaptation
| Date | 01 March 2013 |
| Published date | 01 March 2013 |
| DOI | http://doi.org/10.1111/1468-2230.12012 |
| Author | Christina Eckes |
EU Accession to the ECHR: Between Autonomy
and Adaptation
Christina Eckes*
After the European Union’s accession to the European Convention on Human Rights the EU
will become subject to legally binding judicial decisions of the European Court of Human Rights
(ECtHR) and participate in statutory bodies of the Council of Europe (Parliamentary Assembly;
Committee of Ministers) when they act under the Convention. Convention rights and their
interpretation by the ECtHR will be directly enforceable against the EU institutions and against
Member States when acting within the scope of EU law. This will vest the ECHR with additional
force in a number of Member States, including Germany and the UK. All Member States will
further be subject to additional constraints when acting under the Convention system. The article
considers the reasons for, and consequences of the EU’s primus inter pares position under the
Convention and within the Council of Europe, and the likely practical effect of the EU’s
accession for its Member States.
INTRODUCTION
The European Union (EU)’s accession to the European Convention on Human
Rights (ECHR) is the most topical example of participation by the EU in an
international legal system. Accession to the ECHR will have largely the same
effects as membership in an international organisation. More significantly, the
EU will become subject to legally binding judicial decisions of the European
Court of Human Rights (ECtHR) and it will participate in the statutory bodies
of the Council of Europe (Parliamentary Assembly; Committee of Ministers)
when they act under the Convention.
The EU’s accession to the ECHR has been the subject of political discussion
since the 1970s.1The early debate culminated in 1994 with the Court of Justice
terminating all accession attempts under the old Treaty framework.2The main
reason for the Court of Justice giving a negative opinion was that the Court
wanted to preserve the autonomy of the EU legal order and its own exclusive
jurisdiction over EU law. The situation changed fundamentally on 1 December
2009 with the entry into force of the Lisbon Treaty. Accession has now become
*Associate Professor, Amsterdam Centre for European Law and Governance, University of Amster-
dam. Emile Noël Fellow 2012/2013, New York University. I would like to thank the participants of
the Lisboan – Erasmus Academic Network Workshop on ‘EU External Representation in International
Contexts: Reform Practices after Lisbon’, organised by the Clingendael Institute on 21–22 February
2012, for the discussion; Christiane Ahlborn, Machiko Kanetake, Pieter Jan Kuijper and Alexandra
Timmer, as well as the anonymous reviewers for their comments on earlier drafts; and Margot de Vries
for her research assistance.
1 See eg Memorandum of the Commission of 4 April 1979, Bulletin of the European Communities,
supp. 2/79.
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© 2013 The Author. The Modern Law Review © 2013 The Modern Law Review Limited. (2013) 76(2) MLR 254–285
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possible under EU law. Indeed, it has even become an obligation,3which is
likely to require several more years of political and legal efforts on the part of the
EU, the Member States and the Council of Europe.4
The EU’s accession to the ECHR has also attracted a considerable amount of
scholarly attention. Some contributions have focussed on specific institutional
questions5while others deliver an analysis of recent developments.6Considering
more broadly human rights protection in Europe, Sionaidh Douglas-Scott drew
the rather bleak conclusion that Lisbon Treaty human rights provisions and the
recent case law of the Court of Justice would add to ‘complexity rather than
[produce] human rights protection itself’.7Undoubtedly, the EU’s accession to
the ECHR also adds to complexity but that does not diminish the added value
of an external control for those whose rights may have been violated. The aim
of the present article is to build on and engage with the existing literature on this
complex subject. It offers a nuanced examination of the specific steps that have
recently been taken towards accession in the light of the case law of the ECtHR
and the underlying broader questions of EU constitutional law, and considers
also the implications of the EU’s accession both for the Union and for its
Member States.
Many questions remain open. Do the suggested solutions address the existing
concerns? What other problems might arise? In what way do the two legal
regimes have to be adapted to make the EU’s accession legally possible and
workable in practice? In what way is the EU’s position – as it is set out in the
draft accession agreement – different from the other Contracting Parties? What
are the reasons for the EU’s primus inter pares position under the Convention and
within the Council of Europe? What might be the consequences? How might
the relationship between the Court of Justice and the ECtHR change?
The first section sets the scene by explaining the relationship between the
Council of Europe, the EU and the ECHR, then dealing with the Court of
Justice’s concern with its own judicial autonomy and after that going on to
3 Article 6(2) TEU ‘The Union shall accede . . .’ and Protocol 8. See also on the side of the ECHR:
article 59(2) ECHR as amended by Protocol 14.
4 See ‘Reform and Accession’ below; see also: S. Douglas-Scott, ‘The European Union and Human
Rights after the Treaty of Lisbon’ (2011) 11 Human Rights Law Review 645, 661.
5 T. Lock, ‘Walking on a Tightrope: The Draft ECHR Accession Agreement and the Autonomy
of the EU Legal Order’ (2011) 48 CMLRev 1025; T. Lock, ‘EU accession to the ECHR:
implications for judicial review in Strasbourg’ (2010) 35 ELRev 777. See also: J. Kokott and C.
Sobotta, ‘The Charter of Fundamental Rights of the European Union After Lisbon’ (European
University Institute, EUI Working Papers AEL 2010/6, 2010) at http://cadmus.eui.eu/bitstream/
handle/1814/15208/AEL_WP_2010_06.pdf?sequence=3 (last visited 20 July 2012) and M. den
Heijer, ‘Issues of Shared Responsibility before the European Court of Human Rights’ (SHARES
series, ACIL Research Paper No 2012–04, 2012), at http://www.sharesproject.nl/publication/
issues-of-shared-responsibility-before-the-european-court-of-human-rights/ (last visited 20 July
2012).
6 J. Králová, ‘Comments on the Draft Agreement on the Accession of the European Union to the
Convention For The Protection Of Human Rights And Fundamental Freedoms’ (2011) 2 CYIL;
N. O’Meara, ‘ “A More Secure Europe of Rights?” The European Court of Human Rights, the
Court of Justice of the European Union and EU Accession to the ECHR’ (2011) 12 German Law
Journal 1813; J. P. Jaqué, ‘The Accession of the European Union to the European Convention on
Human Rights and Fundamental Freedoms’ (2011) 48 CMLRev 995.
7 Douglas-Scott, n 4 above, 645, 682.
Christina Eckes
© 2013 The Author. The Modern Law Review © 2013 The Modern Law Review Limited. 255
(2013) 76(2) MLR 254–285
examine the recent case law of the ECtHR that deals with EU law. The second
section turns to the accession discussion. It introduces the reforms of the ECtHR
and the negotiations of the draft accession agreement. The third section analyses
the implications of the EU’s accession to the ECHR in the light of the draft
accession agreement. It deals first with the Member States and then turns to the
Union and the Court of Justice. The final section draws some conclusions.
SETTING THE SCENE: THE STATUS QUO
The Council of Europe, the EU, and the ECHR
Originating in the same post-World War II period, the legal systems developed
by the Council of Europe and the EU are fundamentally different. The former,
by contrast with the latter, has not taken the path of integration but rather
operates on the basis of diplomacy. The Council of Europe’s production of
norms takes place through the adoption of multilateral international conventions,
which cannot be seen as secondary law, but are rather an expression of the will
of the Contracting Parties under international law.
This has not been an impediment to cooperation. The links between the
Council of Europe and the EU have progressively been institutionalised.8
Co-ordination between their respective activities has consistently increased.9
More and more conventions adopted under the auspices of the Council of
Europe are open to the EU.10 Yet, this does not in all instances mean that the EU
actually becomes a signatory.11 The ECHR is the most prominent and topical
example of (planned) EU participation in a convention agreed under the auspices
of the Council of Europe. It might have had a somewhat slow start after its
entering into force in 1953,12 but with the introduction of the ECtHR in 1959
and the growing acceptance of the right of individual petition it has undoubtedly
developed into the key legal instrument of the more than 200 conventions
drafted by the Council of Europe.13 All 47 Contracting Parties of the Council of
8 Eg the Liaison Office of the Council of Europe with the European Union; the head of the
European Union delegation to the Council of Europe participates (without voting rights) in all
meetings of the Committee of Ministers. See also the reference in now article 220 TFEU, which
has been in the Founding Treaties since the inception of the EU.
9 See a webpage dedicated to the cooperation between the CoE and the EU, at http://
www.coe.int/t/der/eu_EN.asp (last visited 20 July 2012).
10 The Complete list of the Council of Europe’s treaties gives an overview of all Council of Europe
conventions open to the EU (at http://conventions.coe.int/Treaty/Commun/ListeTraites.asp?
CM=8&CL=ENG (last visited 20 July 2012); indicated in the column ‘U’). Notice also the
tremendous increase in recent years: 17 of 135 conventions or additional protocols signed between
1949 and 1989 are open to the EU. 34 of 76 conventions or additional protocols signed between
1990 and 2011 are open to the EU.
11 Critical: E. Cornu, ‘Impact of Council of Europe Standards on the European Union’ in R. Wessel
and S. Blockmans (eds), The Autonomy of the EU Legal Order from International Organizations (The
Hague: T.M.C. Asser Press / Springer, forthcoming).
12 L. Scheek, ‘Diplomatic Intrusions, Dialogues, and Fragile Equilibria: The European court as a
Constitutional Actor of the EU’ in J. Christoffersen and M. R. Madsen (eds), The European Court
of Human Rights between Law and Politics (Oxford: OUP, 2011).
13 n 10 above.
EU Accession to the ECHR
© 2013 The Author. The Modern Law Review © 2013 The Modern Law Review Limited.
256 (2013) 76(2) MLR 254–285
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