Recent Legal Developments
| DOI | 10.1177/1023263X1001700208 |
| Date | 01 June 2010 |
| Published date | 01 June 2010 |
| Subject Matter | Recent Legal Developments |
206 17 MJ 2 (2010)
RECENT LEGAL DEVELOPMENTS
EU Accession to the ECHR – e Commi ssion Proposal for Negotiating Directives
Amongst other signic ant changes, the Lisbon Treaty introduced t he long-awaited
legal provision which enables, i n fact obliges, t he European Union (EU) to accede to
the European Convention on Huma n Rights (ECHR).1 e highly anticipated accession
also depended on another important factor, however. Rega rdless of developments on
the EU side, noth ing could happen while Protocol 14 ECHR , which contains a clause
expressly allowing for EU accession,2 had not been ratied by the last remaining Council
of Europe (CoE) Member State.3 In a stunning turn of events, Russia ratied Protocol 14
on February 18, only for the European Commission to submit its proposal for negotiating
directives just one month later, thereby begi nning t he accession process in earnest.4
Protocol 14 entered into force on 1 June, 2010. All eyes are now on the EU.
Article 6(2) TEU provides the legal basis for obligatory EU accession to the ECHR. In
conformity wit h this obligation, t he Commission has made its proposal for negotiating
directives to the Council. Under A rticle 218(2) TFEU, the Council is to aut horize the
opening of the negotiat ions, adopt negotiati ng directives, authorize t he signing of the
agreement and, nally, conclude the latter. Article 218(6)(a)(ii) TFEU requires the consent
of the Europea n Parliament on the ag reement on Union accession to the ECHR .5 Since
1 Article 6(2) TEU provides ‘e Union shal l accede to the Europea n Convention for the Protection of
Human Rights and Funda mental Freedoms. Such accession shall not aect the Union’s competencies as
dened in t he Treaties’. Such a provision wa s a requirement for EU a ccession to the ECH R, as became
evident follow ing the Court of Justice of the Eu ropean Union’s (CJEU) famous opi nion on the matter.
See Opinion 2/94 on Acc ession by the Communit y to the ECHR [1996] ECR I-1759.
2 See Article 17(1) Protocol 14 ECHR, which amends Article 59 ECHR so as to include a second paragraph
providing ‘[t]he European Union m ay accede to this Convention’.
3 e entry into force of P rotocol 14 has been on the shelf for si x years, since its open ing for signature in
May 2004. 46 of t he 47 CoE Member States had rati ed the Protocol by the end of 20 06, leaving Russi a
as the outstanding ratication. It nally r atied on 18 February, 2010, enabl ing the Pr otocol to come
into force three mont hs later in accordance w ith Article 19 Protocol 14.
4 e text of t he negotiating d irectives propose d by the Commiss ion is not itself ava ilable. However the
proposal was a ccompanied by a short pres s release and memo. e former i s available elect ronically at
http://europa.eu/rapid/pressRelea sesAction.do?reference=IP/10/291&format=HTML&aged= 0&langu
age=EN&gui Language=en (la st visited 19.06.2010), while the memo is available electr onically at http://
europa.eu/rapid/pressRele asesAction.do?reference =MEMO/10/84&format=HTML&a ged=0&lang uag
e=EN&guiL anguage=en (l ast visited 19.06.2010).
5 is is the so-ca lled consent procedure, wh ich eectively provides th e Parliament with a ve to on the
agreement but does not enable it to propose amendments. In accordance w ith Article 6(8) TFEU, the
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