Accession of the EU to the Council of Europe – Will it happen? Part 2.

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.

Treaty basis for accession

Article 218(6)(a)(ii) of the TFEU provides that the Council, on a proposal by the negotiator, shall adopt a decision concluding the agreement on Union accession to the ECHR after obtaining the consent of the European Parliament. Further, Article 218(8) TFEU requires the Council to act unanimously for the agreement on accession of the EU to the ECHR, and that

“the decision concluding this agreement shall enter into force after it has been approved by the Member States in accordance with their respective constitutional requirements.”

These Treaty provisions are supplemented by Protocol No 8 TEU, Article 1 of which provides that the agreement relating to the accession of the Union to the ECHR shall make provision for preserving the ‘specific characteristics’ of the EU and EU law. Mention is made, in this regard, of ‘specific arrangements’ which might be made for the EU’s possible participation in the ‘control bodies’ of the ECHR, and of ‘mechanisms necessary to ensure that proceedings by non-Member States and individual applications are correctly addressed to Member States and/or the EU as appropriate’. Article 2 of Protocol No 8 TEU also requires that the EU accession to the ECHR ‘shall not affect the competences of the Union or the powers of its institutions’ and that the position of individual Member States, notably in relation to individual States’ Article 15 or Article 37 reservations  to the ECHR, should not be prejudiced by such EU accession. Article 3 of Protocol No 8 TEU further provides that the agreement for the accession of the EU to the ECHR shall not shall affect the Member States’ existing EU obligation under Article 344 TFEU not to submit a dispute concerning the interpretation or application of the European Treaties to any method of settlement other than those provided for within the EU legal order itself.

The post-Lisbon amended European Treaties conclude the issue of EU accession to the ECHR with a Declaration No 2 on Article 6(2) TEU, which is in the following terms:

“The Conference agrees that the Union’s accession to the European Convention for the Protection of Human Rights and Fundamental Freedoms should be arranged in such a way as to preserve the specific features of Union law. In this connection, the Conference notes the existence of a regular dialogue between the Court of Justice of the European Union and the European Court of Human Rights; such dialogue could be reinforced when the Union accedes to that Convention.”

The required European Treaty bases for the accession of the EU to the ECHR are, at least from the perspective of EU law, now in place. But while the CJEU’s initial veto on EU accession to the ECHR (Re Accession by the EU to the European Convention for the Protection of Human Rights and Fundamental Freedoms [1996] ECR I-1759) may have been removed by these Treaty amendments, any accession Treaty to the ECHR still requires the CJEU’s approval as being consistent with the requirements of EU law. One should note in this regard the earlier opinion Re a Draft Treaty on a European Economic Area [1991] ECR I-6079, when the CJEU vetoed the establishment of an EEA court hierarchy to provide a system of judicial supervision over the whole EEA beyond the EU. The proposed new court structure consisted of an independent EEA Court, functionally integrated with the CJEU, and an EEA Court of First Instance. The new EEA courts were to consist of a number of judges from the CJEU and the Court of First Instance (now the General Court) sitting together, with judges appointed from the various EFTA Member States. The Court of Justice found that such a system of judicial supervision proposed under the draft EEA Treaty was not lawful on the grounds, inter alia, that the proposed system of EEA courts might undermine the autonomy of the EU legal order in pursuing its own particular objectives, going so far as to claim (at paras 70–71):

‘Article 238 of the EEC Treaty [now, after amendment, Art 218 TFEU] does not provide any basis for setting up a system of courts which conflicts with Article 164 of the EEC Treaty [now, after amendment, Art 19(1) TEU] and, more generally, with the very foundations of Community law. For the same reasons, an amendment of Article 238 in the way indicated by the Commission could not cure the incompatibility with Community law of the system of courts to be set up by the agreement.’ (emphasis added).

To similar effect was the more recent Opinion 1/09 Re draft agreement on the European and Community Patents Court, 9 March, [2011] ECR I-nyr where the CJEU noted at para 89:

“[T]he envisaged agreement, by conferring on an international court which is outside the institutional and judicial framework of the European Union an exclusive jurisdiction to hear a significant number of actions brought by individuals in the field of the Community patent and to interpret and apply European Union law in that field, would deprive courts of Member States of their powers in relation to the interpretation and application of European Union law and the Court of its powers to reply, by preliminary ruling, to questions referred by those courts and, consequently, would alter the essential character of the powers which the Treaties confer on the institutions of the European Union and on the Member States and which are indispensable to the preservation of the very nature of European Union law. Consequently, the CJEU (Full Court) gives the following Opinion: the envisaged agreement creating a unified patent litigation system (currently called “European and Community Patents Court”) is not compatible with the provisions of the EU Treaty and the FEU Treaty.”

Discussions were entered into directly between the CJEU and the ECtHR with a view to the two courts formulating a common position to put to the negotiating parties as to whether and how the EU legal system could be integrated within the Strasbourg system for the protection of European human rights. In a Joint Statement from the then Presidents of the European Court of Human Rights (Judge Costa) and of the Court of Justice of the European Union (Judge Skouris) issued in late January 2011, it was suggested by the judges that it would be expedient for the contracting parties to make provision in any agreement between the EU and the Council of Europe for a ‘flexible procedure’ to allow for the prior involvement of the Court of Justice in all cases where an application to the Strasbourg alleges that a provision of EU law is incompatible with the ECHR. The two presiding judges seem to envisage the possibility of some kind of ‘preliminary reference’ down from the Strasbourg Court to the CJEU, in applications from individuals complaining of an incompatibility between EU law and the ECHR, so as to allow the CJEU to exercise an ‘internal review’ on the issue before the European Court of Human Rights exercises its ‘external review’ under the Convention. This suggestion from the European judges has been taken up in the provisions of Article 3(6) of the draft accession agreement of the working group which provides that:

6. 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 of this Article, then sufficient time shall be afforded for the Court of Justice of the European Union to make such an assessment and thereafter for the parties to make observations to the Court. The European Union shall ensure that such assessment is made quickly so that the proceedings before the Court are not unduly delayed. The provisions of this paragraph shall not affect the powers of the Court.

But, the requirement of unanimity in the Council, the consent of the European Parliament and ratification by each of the Member States before such an accession agreement can be concluded creates a whole new series of potential hurdles within the EU system. Accordingly, whether the powers granted under the European Treaties are ever acted upon and an accession agreement concluded, will require serious political will and impetus from all of the Member States and the other EU institutions.

Protocol 14 ECHR, which eventually entered into force on 1 June 2010, made provision for the possibility of EU accession to the Council of Europe by amending the ECHR to include a new Article 59(2), which states that ‘the European Union may accede to this Convention’.    But any actual accession of the EU to the ECHR will require further amendment of the constituting treaties of the Council of Europe (to deal with issues such as the participation of the EU in the Committee of Ministers of the Council of Europe and the possibility of delegates from the European Parliament participating in the sittings of the Parliamentary Assembly of the Council of Europe). Any such treaty amendment brings with it a requirement for the acquiescence and cooperation of all the other non-EU contracting States of the Council of Europe, most notably Russia (whose previous non-cooperation in the matter of allowing for the Protocol 14 ECHR rationalisation of procedures before the European Court of Human Rights has already been the cause of significant delays).  As the Lord Chancellor observed before the Scrutiny Committee:

“Even if we were all desperately anxious to get this through tomorrow, my experience of 47 Governments negotiating documents of this kind is you can be into years and years. I am more anxious to see progress on the procedures of the court in Strasbourg, but my big problem there is: a majority is easy; 47 unanimous may take a little time.”

In other words, this show ain’t over till the fat lady sings.

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