Draft Agreement on the Accession of the EU to the ECHR: fitting Cinderella’s shoes for Gulliver
dr. Agne Limante
Post-Graduate Diploma candidate in EU Law, King’s College London; PhD in EU Law, Vilnius University
On 14th October 2011, the Steering Committee for Human Rights of the Council of Europe published the draft agreement on the Accession of the EU to the European Convention on Human Rights (“Draft Agreement”). The document is a result of intensive and hot debates that were revolving around the question of EU accession to the European Convention for the Protection of Human Rights and Fundamental Freedoms (“ECHR”) for already several decades. This topic attracted a lot of attention not only because of its significance for the development of ECHR and evolution of EU law, but also due to many practical questions which arose trying to fit the system that was created having in mind states, for EU as a phenomena of international cooperation.
Glancing back at the historical developments, one can see that the idea that EU should accede to the ECHR had been circulating for a while. It was proposed by the Commission already in 1979, and repeated eleven years later. On 30 November 1994, the Council referred this question to the Court of Justice of European Union (CJEU), which issued its Opinion 2/94. Herein the CJEU held that EU accession to the ECHR was not possible – the Community law as it existed at the time, provided no legal basis for such accession. The Lisbon Treaty rectified the situation by establishing in Article 6(2) Treaty on European Union (TEU) that EU shall accede to the ECHR and Protocol 8 to the Lisbon Treaty setting the guidelines of such participation.
The factual procedure for bringing about its accession had begun in 2010 when the Steering Committee for Human Rights (CDDH) of the Council of Europe and the European Commission were given mandates to prepare the necessary legal instrument and the wheels of accession were put in motion. The two core difficulties that were at issue were related to the fact that EU is not a state, but a supranational organization of states and that EU is not going to become a party to the Council of Europe. Nevertheless, all the negotiations saw as their target the idea that EU should be treated same like other High Contracting Parties to the ECHR as far as this is possible due to the different nature of EU. The analysis below tries to look at how this idea is embodied in the text of the Draft Agreement.
Technical issues of EU participation
When working on the draft, two institutional issues caused discussion: how to apply the one judge per high contracting party rule (Article 20 ECHR) and, secondly, how EU should take part in the work of the Committee of Ministers of the Council of Europe.
As to the judge from EU side, the Draft Agreement provides for no exceptions for EU. EU will be appointing one judge to the European Court of Human Rights (“ECtHR”) having same term of office, equal status as the other judges and on equal basis taking part in the work of the Court. This means, that contrary to what was suggested, the EU judge will participate in all the cases, not only the ones related to EU law. To have the EU judge elected, EU will have to provide the Parliamentary Assembly with a list of three candidates (similarly to states, contracting parties to ECHR) for election. It is interesting to note, that since all EU Member States are parties to the ECHR and the EU judge will most probably have a nationality of at least one EU Member State, this is likely lead to the situation that two of the judges in the ECtHR will have the same nationality. Accordingly, this might encourage the Court to revise its internal procedures in order to avoid such a situation where two judges from the same state sit in the same case.
As the Committee of Ministers of the Council of Europe has powers such as execution of judgments and friendly settlements rendered by the Court, the question on EU participation in its work has also attracted attention. The solution suggested by the Draft Agreement is that EU is granted a right to participate in the Committee of Ministers (with voting rights), when decisions related to the ECHR are taken. Again, some precautions are taken to insure “effective exercise” of the Committee’s of Ministers supervisory functions. Firstly, to avoid the possibility that the EU Member States, together having a majority in the Council of Europe, block decisions related to the supervision of the execution of judgments and friendly settlements in cases involving the EU, the Draft Agreement requires to modify the rules of procedure of the Committee of Ministers. Secondly, the Draft Agreement states that the EU is precluded from voting in cases where the Committee of Ministers supervises the fulfilment of obligations by one of the EU Member States.
Though it was taken as self evident, it is worth noting that EU agreed to contribute to the expenditure relating to the functioning ECHR. The contribution is fixed at 34% of the highest contribution made in the previous year by any State to the budget of the Council of Europe. Counting the data for this year, that would be about a bit over €9 million out of EU budget exceeding €140 billion, not a considerable amount considering a fact that recently European Parliament voted to spend €2 million on homeopathy for animals.
Substantial issues of EU participation
Following the worries expressed by several of its Member States, EU will not accede to all protocols of ECHR. According to the Draft Agreement, EU accedes only to the ECHR and Protocol No.1 (peaceful enjoyment of one’s possessions, the right to education and the right to vote) and, quite symbolically, to the Protocol No. 6 (abolition of the death penalty). Those are the protocols that have already been ratified by all of EU Member States. Therefore, no objections to EU participation in them were brought.
Concerns had also been expressed with respect to the fact that the ECtHR might involve in review of primary law of the EU. Quite surprisingly, the Draft Agreement does not exclude that. One might notice that EU Member States may become co-respondents in cases, where an application before the ECtHR raises a question whether the provision of the EU Treaties is compatible with the ECHR.
As to the future of the so-called Bosphorus (equivalent protection) test (established in Bosphorus v Ireland), the Draft Agreement sheds no light: it is not clear if and how this test will be applied in the future, and whether it should apply to all EU-related cases, including the ones against the EU. From one side, keeping the equivalent protection test would mean the continuity of the ECtHR practice and bilateral respect to the decision making procedures in EU, from the other side it would favour the EU contradicting to the idea of EU participation in the ECHR on the equal footing with the other High Contracting States.
Some procedural questions of EU participation arose as a result of division of competences between the EU and its Member States and duty of Member States to implement EU law.
In EU law related cases, when private party seeks to challenge a national measure implementing EU law there might be a problem in identifying an appropriate addressee. This was remembered when drafting EU Protocol no. 8, which requires that the accession agreement to include the necessary mechanisms ensuring that proceedings by non-Member States and individual applications are correctly addressed to Member States and/ or the Union as appropriate.
Here, the ECHR system applied for states was unsuitable and some new formula was needed. The Draft Agreement offers a solution by suggesting co-respondent, or co-defendant, mechanism. According to it, EU member states and EU may ask to be involved in cases before the ECtHR as co-respondent party. Two scenarios are possible in this regard: (i) one or more EU Member States are main respondents and EU is involved as co-respondent; or (ii) the EU is the main respondent and one or more EU Member States are co-respondents. Under the first scenario, EU may become a co-respondent if it appears that the alleged violation of the ECHR calls into question the compatibility with the Convention rights at issue of a provision of EU law, and where that violation could have been avoided only by disregarding an obligation under EU law. The second scenario might arise and EU Member States can become co-respondents where a provision of EU primary law is allegedly in breach of the ECHR.
It is interesting to note that the Draft Agreement specifically addresses situations where EU would be involved in a case as a co-respondent and CJEU has not yet had the opportunity to give its decision on the compatibility of EU law provision in question with the ECHR. Here, privileging the CJEU to national constitutional courts, the Draft Agreement provides for the possibility for the CJEU to make an assessment “quickly”, so that the proceedings before the ECtHR are not unduly delayed .
Additional question might arise on how the exhaustion of domestic remedies rule would be applied in cases involving EU law. Since the usual admissibility requirements would continue to apply, in cases where individual would be challenging EU legal acts, this would go through annulment procedure (Article 263 Treaty of the Functioning of EU), Court of Justice being the last instance case (appeal from the General Court). However, in cases where individual would question legality of national law, implementing EU law, exhausting domestic remedies would only require climbing the ladder of national courts (they could decide to refer the case for a preliminary ruling).
So did the Draft Agreement succeed in fitting EU into the ECHR system designed for states? Probably yes, but by modifying the system and by not always staying with the idea of equal footing.
 The Draft Agreement, if the text would be finally approved, would enter into force three months after ratification by all Council of Europe member states and by the European Union.
 Memorandum on the accession of the European Communities to the Convention for the Protection of Human Rights and Fundamental Freedoms. COM (79) 210 final, 2 May 1979. Bulletin of the European Communities, Supplement 2/79.
 Commission Communication on Community accession to the European Convention for the Protection of Human Rights and Fundamental Freedoms and some of its Protocols. SEC (90) 2087 final, 19 November 1990.
 For more detailed historical perspective see, for example,
Martin Kuijer. “The accession of the European Union to the ECHR”. (2011) 3(4) Amsterdam Law Forum <http://ojs.ubvu.vu.nl/alf/article/view/240/428> accessed 7 December 2011; See also Leonard Besselink, “The EU and the European Convention of Human Rights after Lisbon: From ‘Bosphorus’ Sovereign Immunity to Full Scrutiny?” < http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1132788> accessed 7 December 2011;
 On the Council of Europe side, it was the entry into force of Protocol 14 to the ECHR in June 2010 that established a legal basis for EU accession.
 For all the relevant documents see the website of CDDH <http://www.coe.int/t/dghl/standardsetting/hrpolicy/CDDH-UE/CDDH-UE_documents_en.asp>
 This is just a short overview. For an extensive analysis of the draft see Xavier Groussot, Tobias Lock, and Laurent Pech, “EU Accession to the European Convention on Human Rights: a Legal Assessment of the Draft Accession Agreement of 14th October 2011”. Robert Schuman Foundation, Policy papers, European issues No 218. < http://www.robert-schuman.eu/doc/questions_europe/qe-218-en.pdf > accessed 9 December 2011.
 Since the EU is not going to become a party to the Council of Europe, it cannot take part in the Parliamentary Assembly, which is, inter alias, electing the judges. To put EU in the similar situation as the other parties to the ECHR, the Draft Agreement offers EU to be represented in PACE when it is electing judges. European Parliament will be sending a group of MEPs, whose number should be equal to the number of representatives sent to the PACE by the largest states (now it is 18).
 Here having in mind the EU, the ECtHR established that as long as the international organisation “is considered to protect fundamental rights… in a manner which can be considered at least equivalent to that for which the Convention provides” the ECtHR will presume that a State has acted in compliance with the Convention, where the state had no discretion in implementing the legal obligations flowing from its membership of the organisation. For analysis of the case, see for example, Cathryn Costello, “The Bosphorus Ruling of the European Court of Human Rights: Fundamental Rights and Blurred Boundaries in Europe”. Human Rights Law Review. 2006, 6(1), pp. 87–130; Sionaidh Douglas−Scott, “Case Comment on Bosphorus Hava Yollari Turizm Ve Ticaret Anonim Sirketi v. Ireland”, (2006) CMLR, pp. 243-254.
 Traditionally, state could join the case as third intervening party under Article 36 ECHR.
 This would require for the accelerated procedure in the CJEU and, respectively, amending of CJEU Rules of Procedure. See also Joint Statement of the Presidents of CJEU and ECtHR. <http://www.echr.coe.int/NR/rdonlyres/02164A4C-0B63-44C3-80C7-FC594EE16297/0/2011Communication_CEDHCJUE_EN.pdf>
By Agne Limante
Post-Graduate Diploma candidate in EU Law, King’s College London