Accessio, quo vadis? The EU’s accession to the European Convention on Human Rights
The accession of the European Union (EU) to the European Convention of Human Right (ECHR) has been discussed among Europeans for decades. In December 2014, the Court of Justice of the European Union (CJEU) ruled that the Draft Accession Agreement undermined the autonomy of EU-law. Since then, negotiations have not been re-opened. This article makes the case for reinforcing the EU’s efforts to join the convention.
The EU and the European Convention on Human Rights
Since the Treaty of Lisbon became effective in 2009, the EU is formally obliged to access the ECHR according to Art. 6(2) Treaty on European Union (TEU). However, after three years of continuous negotiations between the European Commission and the 47 ECHR contracting parties, the CJEU rejected the accession, ruling that the Draft Agreement was not compatible with EU law. The CJEU’s negative advisory opinion and its defensive judicial reasoning regarding the autonomy of the EU’s legal system was sharply criticized—which in some parts is justified, in others not. Due to the legal complexity of questions in European law, this article does not discuss the CJEU’s opinion in detail. Instead, looking forward into the future, it analyses the advantages of an accession.
In Europe, fundamental rights are protected by three catalogues of fundamental rights which remain in a tense relationship: The national constitutions (in Germany the Grundgesetz), the supranational Charter of Fundamental Rights (CFR) of the European Union and the ECHR. The compliance of the contracting parties with the ECHR is monitored by the European Court of Human Rights (ECtHR). Since the 1970s, there is an ongoing discussion about combining the EU´s legal system with the ECHR by accession. This act would be well-grounded, since the consequences of an accession would be an external human rights monitoring of EU measures as well as coherence in fundamental rights protection all over Europe.
It is true that the ECHR´s provisions about human rights already influence the EU as general principles and a constitutional minimum standard. However, in the absence of ECHR membership, EU measures cannot be subject to the ECtHR´s external control regarding the convention´s human rights. Thus, a complainant cannot appeal directly against EU measures before the ECtHR. Conversely, she cannot appeal to ECHR rights before the CJEU. In addition, a violation of fundamental rights by EU measures can hardly be brought before the CJEU anyway, due to the Court´s narrow interpretation of individual concern in Art. 263 Treaty on the Functioning of the EU (TFEU). Hence, from an individual´s perspective, fundamental rights protection against EU measures is hard to obtain. For example, a small farmer association from Spain was not able to take action against an EU direction abolishing an aid scheme at the CJEU. Consequently, it was not possible to examine if the farmers’ freedom of ownership and occupation was violated. This shows there is a missing link in the EU´s system of fundamental rights protection.
These gaps would be filled if the EU accessed to the convention. As an international treaty, the ECHR would become a binding part of EU law so that EU measures have to comply with the convention. As a result, EU measures would be subject to the ECtHR´s jurisdiction. If the EU had been a contracting party to the ECHR in the example above, the Spanish small farmer association could have taken legal action against the EU direction before the ECtHR by individual application relying on its fundamental rights guaranteed under the ECHR.
Towards a more coherent human rights protection in Europe?
As contracting party to the ECHR, all EU institutions and bodies, agencies, offices and entities acting on behalf of the EU would be bound to the convention´s human rights provisions. This would enhance human rights protection in the EU´s various areas of competence such as in justice, privacy and migration. Moreover, as a consequence of provisions in the Draft Agreement, the courts in Luxembourg and Strasbourg would have to cooperate in their rulings, which would prevent divergent judgements. All this would make fundamental and human rights protection in Europe more coherent.
However, despite the accession commitment in Art. 6(2) TEU, Brussels seems to take no further action although Commission president Juncker declared in April 2016 that the accession was a political priority for the Commission. Also the Commission’s 2017 Work Programme announces that it would continue pursuing its work on a solution and not rest until it was found. The Council of Europe is also still open to negotiations. However, there have been no indications for a re-opening of the negotiations in Strasbourg so far. The reason for this may be that the EU is currently concerned with other important matters such as Brexit, the Russia-Ukraine conflict or its refugee policy. Further, the tense relationships to the ECHR contracting parties Russia and Turkey would make new negotiations difficult. Another reason could be the strict requirements for the accession delivered by the CJEU in its advisory opinion. A third negative advisory opinion after 1996 and 2014 would probably be the end of the decades-old project. But this fear is unfounded since there is no obligation to obtain the opinion of the CJEU according to Art. 218(11) TFEU. This of course does not mean to ignore the Court´s justified criticism in its 2014 advisory opinion.
Either way, the obligation to access the ECHR in Art. 6(2) TEU is in place and the harmonisation of the catalogues of fundamental rights would establish an external human rights monitoring. This would be a great achievement for every individual strengthening the EU´s credibility in Europe as well as in its international relations. Therefore, it´s time to go back to the drawing board.
 See the English discussion on Verfassungsblog, http://verfassungsblog.de/category/schwerpunkte/die-eu-als-mitglied-der-menschenrechts-konvention/ .
 CJEU case C-50/00 P, Unión de Pequeños Agricultores v. Council of the EU (July 25, 2002), ECLI:EU:C:2002:462, http://curia.europa.eu/juris/document/document.jsf?text=&docid=47107&pageIndex=0&doclang=DE&mode=req&dir=&occ=first&part=1.
 See http://europa.eu/rapid/press-release_SPEECH-16-1487_en.htm.© Picture: European Parliament