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The accession of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms—overview of the Accession Agreement

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Abstract

This article gives an overview of the accession agreement, negotiated between the European Union and the 47 Council of Europe Member States on the accession of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms. The article also describes the negotiations leading to the endorsement of the Agreement and outlines the next steps in the process leading to EU accession.

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Notes

  1. The agreement was reached at the fifth negotiation meeting on 3–5 April 2013 between the CDDH ad hoc negotiation group and the European Union. The report of the session is available at: http://www.coe.int/t/dghl/standardsetting/hrpolicy/Accession/Meeting_reports/Web_47_1(2013)R05_EN.pdf (9 September 2013).

  2. The latest texts are available at: http://www.coe.int/t/dghl/standardsetting/hrpolicy/Accession/Meeting_reports/47_1(2013)008rev2_EN.pdf (9 September 2013).

  3. See http://conventions.coe.int/Treaty/EN/Treaties/Html/194.htm, entered into force on 1 June 2010 (9 September 2013).

  4. See TEU Article 19(1) and TFEU Article 344.

  5. Submission of Amnesty International, the Aire Center and the International Commission of Jurists. Available at: http://www.coe.int/t/dghl/standardsetting/hrpolicy/accession/Working_documents/NGO_submissions_EU_accession_5Nov2012.pdf (9 September 2013). See also NGO briefing note on the Accession Agreement and next steps: http://www.icj.org/joint-briefing-paper-on-eu-accession-to-the-european-convention-on-human-rights/ (10 September 2013).

  6. Polakiewicz [9].

  7. Weiss [11].

  8. See Bosphorus v. Ireland, no 45036/98, ECHR 2005-VI and Matthews v. UK no 24833/94, ECHR 1999-I. See also Kuhnert [5] and Gragl [2].

  9. On cooperation between the two courts and the ensuing mutual enrichments see Bratza [1].

  10. Council document 10817/10 RESTREINT UE.

  11. Council document 16573/12, para 2 http://register.consilium.europa.eu/pdf/en/12/st16/st16573.en12.pdf (10 September 2013).

  12. See the CDDH report of the 7th meeting, 15-18 June 2010, CDDH(2010)10, available at http://www.coe.int/t/dghl/standardsetting/cddh/Meeting%20reports%20committee/70th_en.pdf (9 September 2013).

  13. For an analysis of the draft of June 2011, prepared in the 7+7 format, please see Groussot, Lock, Pech [3] and Lock [6].

  14. See the report to the Committee of Ministers on the elaboration of legal instruments for the accession of the European Union to the European Convention on Human Rights, CDDH (2011)09 http://www.coe.int/t/dghl/standardsetting/hrpolicy/Accession/Meeting_reports/CDDH_2011_009_en.pdf (accessed on 9 September 2013).

  15. Council document 8915/12 RESTREINT UE.

  16. Decisions of the 1145th meeting of the Ministers’ Deputies (13 June 2012). Available at: http://www.coe.int/t/dghl/standardsetting/hrpolicy/Accession/Working_documents/47_1(2012)01_CM_Decision_BIL.pdf (accessed on 9 September 2013).

  17. Common paper of Andorra, Armenia, Azerbaijan, Bosnia-Herzegovina, Iceland, Liechtenstein, Monaco, Montenegro, Norway, Serbia, Switzerland, Russian Federation, Turkey and Ukraine on major concerns regarding the Draft revised Agreement on the Accession of the European Union to the European Convention on Human Rights. Available at: http://www.coe.int/t/dghl/standardsetting/hrpolicy/Accession/Working_documents_en.asp (accessed on 9 September 2013). During the meeting Georgia and Moldova associated themselves to the paper.

  18. Report of the fourth negotiation meeting between the CDDH and the European Commission on the accession of the European Union to the European Convention on Human Rights, 17–19 January 2013, Strasbourg, paragraph 2. Available at: http://www.coe.int/t/dghl/standardsetting/hrpolicy/Accession/Meeting_reports/Web_47_1(2013)R04_EN_final.pdf (accessed on 9 September 2013).

  19. http://www.coe.int/t/dghl/standardsetting/hrpolicy/Accession/Working_documents/47_1(2013)001_EN.pdf (accessed on 9 September 2013).

  20. For a contrary view see Jacqué [4], p. 1003–1004, arguing that the Union should accede to all Protocols that refer to rights guaranteed by the Charter.

  21. For an analysis of the co-respondent mechanism as in the June 2011 Accession Agreement, see Lock [6].

  22. CDDH-UE(2011) 16, para 33.

  23. In particular, in the negotiations it was discussed whether the co-respondent mechanism should be extended to situations in which an application directed against a non-EU state puts into question the compatibility with ECHR of an international agreement between that state and the Union (e.g. the EEA Agreement). This issue will now be dealt with in a separate memorandum of understanding the model text of which is a part of the package agreed since it was considered that in this instance it would be more appropriate for the Union to intervene as a third party.

  24. For instance para 12 of the report of the fourth negotiation meeting between the CDDH and the European Commission on the accession of the European Union to the European Convention on Human Rughts, 17–18 January 2013, Strasbourg.

  25. See Appendix II in the final report, available at http://www.coe.int/t/dghl/standardsetting/hrpolicy/Accession/Meeting_reports/47_1(2013)008rev2_EN.pdf (9 September 2013).

  26. Both documents are available on the website of the CJEU under Institution/Various documents at http://curia.europa.eu/jcms/jcms/P64268/ (17 June 2013).

  27. See also Gragl [2], p. 274, concluding that a request for a preliminary ruling is not a necessary pre-requisite under Article 35(1) of the ECHR.

  28. For more on this, please see Lock [7], Ritleng [10] and Gragl [2].

  29. For an analysis of the co-respondent mechanism as in the June 2011 Accession Agreement, see Lock [6].

  30. Article 1(4): ‘For the purposes of the Convention, of the Protocols thereto and of this Agreement, an act, measure or omission of organs of a member State of the European Union or of persons acting on its behalf shall be attributed to that State, even if such act, measure or omission occurs when the State implements the law of the European Union, including decisions taken under the Treaty on the European Union (hereinafter referred to as “the TEU”) and under the Treaty on the Functioning of the European Union (hereinafter referred to as the “TFEU”). This shall not preclude the European Union from being responsible as a co-respondent for a violation resulting from such an act, measure or omission, in accordance with Article 36, paragraph 4, of the Convention and Article 3 of this Agreement.’ Available at: http://www.coe.int/t/dghl/standardsetting/hrpolicy/Accession/Meeting_reports/47_1(2013)008rev2_EN.pdf (9 September 2013).

  31. Under Article 275 of the TFEU the Luxembourg Court has no jurisdiction with respect to the provisions relating to the CFSP nor with respect to acts adopted on the basis of those provisions. The only exception is to review the legality of decisions providing for restrictive measures against natural or legal persons. See also Jacqué [4], p. 1005.

  32. See paragraph 7 of the meeting report of the third negotiating session, 7–9 November 2012. Available at: http://www.coe.int/t/dghl/standardsetting/hrpolicy/Accession/Meeting_reports/47_1(2012)R03_EN_final.pdf (9 September 2013).

  33. Grand Chamber decision of 2 May 2007 on application no. 71412/01, Agim Behrami and Bekir Behrami against France and on application no. 78166/01 Ruzhdi Saramati against France, Germany and Norway.

  34. See also Mujezinovic Larsen [8].

  35. See para 12 of the report of the second negotiation meeting between the CDDH and the European Commission on the accession of the European Union to the European Convention on Human Rughts, 17–19 September 2012, Strasbourg.

  36. See para 14 of the report of the second negotiation meeting between the CDDH and the European Commission on the accession of the European Union to the European Convention on Human Rughts, 17–19 September 2012, Strasbourg.

  37. See the final report CDDH 47+1(2013)008 for further details. Available at: http://www.coe.int/t/dghl/standardsetting/hrpolicy/Accession/Meeting_reports/47_1(2013)008_final_report_EN.pdf (9 September 2013).

  38. Report of the fifth negotiation meeting between the CDDH and the European Commission on the accession of the European Union to the European Convention on Human Rights, 3–5 April 2013, Strasbourg, paragraph 16. Available at: http://www.coe.int/t/dghl/standardsetting/hrpolicy/Accession/Meeting_reports/Web_47_1(2013)R05_EN.pdf (9 September 2013).

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  1. DG D—Justice and Home Affairs, Rue de la Loi 175, 1048, Brussels, Belgium

    Kristi Raba

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Correspondence to Kristi Raba.

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This article is based on a presentation given at the Summer Course on EU Institution Law organised by ERA on 24–28 June 2013 in Trier.

The views expressed are the author’s own and do not in any way reflect the Council’s views.

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Raba, K. The accession of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms—overview of the Accession Agreement. ERA Forum 14, 557–572 (2013). https://doi.org/10.1007/s12027-013-0321-0

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