Accession of the EU to the Council of Europe – Will it happen? Part 1.

Aidan O’Neill QC

In a previous post we noted the difficulties arising from having two “European Supreme Courts” each authoritatively (and apparently finally) adjudicating on the proper interpretation of the ECHR. The solution to the dilemma of which court to follow in the event of divergence between the CJEU and the ECtHR on fundamental rights issues has been for the EU itself to accede to the Council of Europe and for the CJEU to be placed under the jurisdiction of the ECtHR. In a series of posts EUtopia law looks at some of the hurdles to be overcome if this goal is ultimately to be realised.

The accession negotiations begin

On 7 September 2011 the Lord Chancellor and Secretary of State for Justice, Kenneth Clarke MP, gave evidence to the House of Commons European Scrutiny Committee (which is chaired by Bill Cash MP) on the topic of EU Accession to the European Convention on Human Rights and the EU Charter of Fundamental Rights. He advised the Scrutiny Committee that an informal working group 14 individuals (7 coming from member States of the EU and 7 coming from non-member States of the EU), chosen on the basis of their expertise had produced a draft agreement dated 19 July 2011 setting out possible terms for the accession of the EU to the ECHR. The Lord Chancellor was at pains to emphasise to the Scrutiny committee that this document had no binding legal status whatsoever, and was simply the first step in starting the complex negotiations involving the European Commission, the Council of Europe Secretariat, the 27 Member States of the European Union, and the further 20 non-EU European states who make up the 47 contracting States of the Council of Europe.

As the European Court of Human Rights (ECtHR) noted in Cooperatieve Producentenorganisatie van de Nederlandse Kokkelvisserij UA v Netherlands (App. No. 13645/05), a non-admissibility decision of the ECtHR, 20 January 2009:

 

 “The European Community has separate legal personality as an international intergovernmental organisation.  At present, the European Community is not a party to the Convention …The application is therefore incompatible with the provisions of the Convention ratione personae within the meaning of Article 35(3) of the Convention in so far as the applicant association’s complaints must be understood as directed against the European Community itself …. and must be rejected pursuant to Article 35(4).”

Although the ECtHR is thus prevented, by a self-denying ordinance, from examining the procedure of the CJEU directly in the light of the requirements of the ECHR (notably Article 6(1) ECHR), the possibility for an indirect Strasbourg review of the Convention compatibility of the CJEU’s procedures remains if the Strasbourg Court considers that the events complained of in any application engage the responsibility of all or any of the individual Member States which are also all contracting parties to the Council of Europe. This is, perhaps, a less than satisfactory solution, certainly for the Member States who might find themselves saddled with responsibility by the ECtHR for procedures and proceedings before the CJEU over which, as individual States, they have no direct control and little influence, should the Strasbourg Court come to the view that the procedures of the CJEU did not provide ‘equivalent protection’ to that directly guaranteed under the Convention.

As we noted in the last post, the response by the Member States to this conundrum, and to the dilemma posed to national courts by having two supreme European Courts adjudicating on fundamental rights issues, has been to make express provision in Article 6(2) of the TEU giving a legal basis in EU law allowing for negotiations to be entered into with the Council of Europe and its constituent States with a view to permitting the EU – as a discrete international person – to accede to the ECHR (and thereby place the CJEU under the ultimate jurisdiction of the ECtHR). As the Lord Chancellor put it in his evidence to the Scrutiny Committee:

 “If you as a British subject think the Convention has been breached and your human rights have been impaired by one of the institutions of the European Union, you bring an action against the British Government. This is not satisfactory, and so what this would allow you to do is to bring an action against the EU and its institutions; it makes the EU and its institutions directly subject to the Convention and answerable for it.   … A constituent who felt they wanted to bring an action for breach of their human rights, contrary to the Convention, against a European Union institution would be able to take them directly to Strasbourg.”

But when the Lord Chancellor was asked to give a practical example of the difference this might make to individuals in practice, his legal adviser, Daniel Denman, Assistant Director, Information and Human Rights Team, Legal Directorate told the Committee:

 

“The classic example is the Commission in an overzealous competition investigation that kicks down the door rather too zealously. There is a question at the moment whether it would be possible for an individual to take the member states to the Strasbourg court in respect of that sort of action. That question is unresolved. It is quite possible that would not be the case. After accession, though, it would be clear that it would be possible to take the EU to the Strasbourg court in respect of that act of the Commission in the individual case.”

This provoked the following response from the Committee Chair, Bill Cash MP:

What does that have to do with human rights? I am slightly puzzled by this, Lord Chancellor, because we are really talking about issues of wrongdoing – people who are put in some jeopardy. It is not exactly comparable to a situation regarding competition law between commercial entities. What we are interested in here in our advocacy of human rights legislation and the possible UK Bill of Rights or whatever else is to protect people as individuals from their being adversely affected by the mechanisms of the legal process.”

This exchange captures perhaps much of the popular unease with lawyers’ use of the language of human rights. It is clear from both EU and Strasbourg case law that commercial entities have “human rights” too. Perhaps they shouldn’t – and maybe there is scope for a campaign demanding “Human Rights for Humans only” – but to deprive legal persons of fundamental rights would require treaty amendments to reverse established ECtHR and CJEU case law and instead limit such rights to natural rather than (international) legal persons. There may indeed some political impetus behind such a campaign, if only to forestall any possibility of the realization of what must be the ultimate Eurosceptic nightmare: the EU bringing cases before Strasbourg against EU and non-EU member States complaining that that its “human rights” have been breached by the actions of other States.

But another (for the Eurosceptic) nightmarish scenario might beckon in the event of the EU’s accession to the ECHR. If the provisions for the ultimate accession of the EU itself to the ECHR is intended to make the EU to all intents and purposes equivalent to any other State contracting party to the ECHR, in theory the EU could then itself begin to act as a general international human rights watchdog over the other contracting states by bringing inter-State actions against them before the Strasbourg Court as Ireland did against the United Kingdom, and Cyprus has against Turkey. The Treaty basis for such enforcement action as a matter of EU law might be found in Articles 3(5) and 3(6) TEU which provide:

5. In its relations with the wider world, the Union shall uphold and promote its values and interests and contribute to the protection of its citizens. It shall contribute to peace, security, the sustainable development of the Earth, solidarity and mutual respect among peoples, free and fair trade, eradication of poverty and the protection of human rights, in particular the rights of the child, as well as to the strict observance and the development of international law, including respect for the principles of the United Nations Charter.

6. The Union shall pursue its objectives by appropriate means commensurate with the competences which are conferred upon it in the Treaties.”

And Article 21(1) TEU which states:

“The Union’s action on the international scene shall be guided by the principles which have inspired its own creation, development and enlargement, and which it seeks to advance in the wider world: democracy, the rule of law, the universality and indivisibility of human rights and fundamental freedoms, respect for human dignity, the principles of equality and solidarity, and respect for the principles of the United Nations Charter and international law.”

In the next post EUtopia law will examine the treaty basis for accession and the treaty amendments required for the EU to accede to the ECHR.

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