Implications of EU's accession to the European Convention on Human Rights

By Jana Lozanoska LL.M

(PhD Candidate and former Director of the Center for Democracy and Security in Euro-Balkan
Institute. Currently works as an independent consultant.

The paper will examine the solutions included in the EU Lisbon Treaty adopted recently which pertain
to the human rights protection1. Notably, the accession of EU as such to the European Convention of
Human Rights is a matter of reality now. However, political and legal implications should be expected
despite the existing optimism for establishing coherence between both systems. On one side, having the
European Convention on Human Rights and Freedoms2 and the European Court of Human Rights as
mechanism for judicial control on respect of the Convention, and on the other hand the Charter of
Fundamental Rights of the European Union from 2000 3 with the European Court of Justice. Thus, the
analysis will attempt to answer the question whether the similarity and/or divergence of EU and the
broader European system will strengthen the protection of human rights or will create additional
confusion.

Initially, one has to look at the specificity of both systems before launching to the core of the analysis
related to the constitutional changes of Treaty of Lisbon which entered into force on December 1,
2009. The EU is a supranational organization established in 1952 as Steel and Coal Community. The
main purpose then was the economic interest, the promotion of human rights was not a primary
objective for the founders of European Communities. Throughout its evolution the fundamental rights
rose as a requisite not only for Member States, but also for those biding to acquire full membership to
the European Union4.

The European Union is comprised of institutions with capacity of lawmaking - directly applicable in
the Member States, which means there is no necessity to adopt implementing legislation. The areas of
legal regulation are wide and do not pertain only to human rights. Although human rights are generally

1 Consolidated version of the Treaty on European Union and Treaty on the Functioning of European Union (EU Lisbon Treaty), Official
Journal of the European Union, 2008/C 115/01.

2 2 Convention on Protection of Human Rights and Fundamental Freedoms Rome. 4.XI 1950 , as amended by Protocols Nos.11 and 14, Registry of the European Court of Human Rights June 2010.
Available at: www.coe.int.

3 Charter of Fundamental Rights of the European Union, Official Journal of the European Communities, 2000/C 364/01.

4 European Council in Copenhagen, Conclusions of the Presidency, 21-22 June, 1993. p.14.
matter of interest of the Union until the adoption of European Single Act of 19865 and subsequently
with the Treaty on European Union 1992 no catalog of fundamental rights protection was provided by
the EU/EC primary positive law. The case law of the European Court of Justice made a breakthrough
for including direct provision recalling in its judgments the general principles of law and on the rule of
law6. The article F (2) of the said Treaty reads: “The Union shall respect fundamental rights, as
guaranteed by the European Convention for the Protection of Human Rights and Fundamental
Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions
common to the Member States, as general principles of Community law” 7.

The Council of Europe on the other hand is the oldest pan-European organization founded in 1949 and
nowadays comprised of 47 Member States including EU Members States and non-EU Member States.
Its primary objective since the establishment is to promote the respect for human rights, democracy and
rule of law. The legal instrument which is most widely known is the European Convention of Human
Rights and Fundamental Freedoms (ECHR) from 1950. The body responsible for implementation of
the
Convention is the European Court of Human Rights (ECtHR).

The provision relevant for the discussion in this paper included in the EU Lisbon Treaty is Article 6.
The paragraph 1 relates to the Charter of Fundamental Rights of the European Union (Charter)
whereby making it legally binding in its totality for the first time since its proclamation in 2000 in
Nice. Initially, is relevant to examine the substantive complementarity and/or divergence between both
sets of documents (the Charter on one and the ECHR on the other hand) before launching to the
procedural discussion.

Since 1974 all Members States of EC/EU have also been members of the ECHR. As a consequence the
ECHR and the case law of the ECtHR have been serving both to the development of the ECJ's practice
and for drawing up the Charter on Fundamental Rights8. Similarly the historic evolve of EU/EC
treaties confirm that ECHR has been taken as reference point in every document so far. This is due to
the fact that Members States of EC/EU respectively as States Parties of ECHR have obligation to
5 In its preamble stressed the determination of State Parties ' to work to promote democracy and fundamental rights.....recognized in the European Convention of Human Rights'.

6 V. Heydt, 'EU Adhesion to European Convention of Human Rights without benefit for citizens', June 2010. Available at: http://www.europolitics.info/eu-adhesion-to-european-convention on-human-
rights-without-benefit-for-citizens-art278556-10.html.

7 Treaty on European Union, Official Journal C191 July 1992. Available at: http://eur-lex.europa.eu/en/treaties/dat/11992M/htm/11992M.html

8 N. Bamforth, European Union Law, the European Convention, and Human Rights, Virginia Lawyer Vol. 58. International Practice Section, February 2010. Available at:
http://www.vsb.org/docs/valawyermagazine/vl0210_EU-law.pdf .
'secure to everyone within their jurisdiction the rights and freedoms...'.9. Such requirements contained
in the ECHR and elaborated through the case law of the ECtHR simultaneously shaped the
fundamental rights protection within EU/EC. In that sense Article 52 para 3 of the Charter provides:
“In so far as this Charter contains rights which correspond to rights guaranteed by the Convention for
the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights
shall be the same as those laid down by the said Convention. This provision shall not prevent Union
law providing more extensive protection.”

In short the said provision stresses that the both sets are substantively similar, but however broader
protection might be provided with the Charter itself. That the Charter is more extensive can be also
confirmed by employing the general rules of treaty interpretation10 and by consecutively comparing
both regimes. First and foremost the difference between the Charter and ECHR is that the former
among political and civil rights includes economic, social, cultural and citizenship rights as well.
Further, it contains provision on non-discrimination which is stand-free as oppose to the ECHR which
has to be related to the substantive right in order discrimination to be claimed. The Charter has one
general limitation clause whereas the ECHR has separate restriction clauses.

Apart from these minor differences of the substantive provisions, this parallel regimes situation triggers
another question of application and functioning of the two systems in situation when EU accedes to the
ECHR and in the same time when the Charter is legally binding document. Until the declaratory level
this parallelism does not create problems but when brought to practical terms it could create difficulties
if the details surrounding the accession and all related issues are not worked out properly.

In terms of access to the ECJ the Charter does not directly provide a right of individual petition to the
ECJ, similarly Lisbon Treaty has not changed this situation. The only recourse to Luxembourg open to
litigants for a breach of a Charter right would be, therefore, through the preliminary reference
procedure which enables domestic courts to consult the ECJ for rulings on points of Community law.
In that sense the citizens have limited locus standi when it comes to the ECJ. Whereas the ECHR
provides for individuals to directly claim their rights in front of the ECtHR these are considered
admissible if only certain criteria are satisfied including the exhaustion of all domestic remedies11. In
9 Article 1 ECHR. Op.cit. note 2.

10 Article 31,Vienna Convention on the Law of Treaties, Done at Vienna May 1969, Entered into force 27 January 1980, United Nations, Treaty Series vol.1155, p.331. Available at:
http://untreaty.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf, See also op.cit. note.1, Article 6(1) EU Lisbon Treaty .

11 Op.cit. note 2. Article 35, ECHR.

that sense many jurisdictional questions are pertinent. First, which is the relationship between the
ECtHR and ECJ? Should ECtHR be last instance resort for examining alleged human rights violations,
and should review the ECJ judgments? Who decides on the issues related to EU law and the human
rights protection?

To answer these questions one has to turn to the core of the analysis which is linked to Article 6 (2) of
the EU Lisbon Treaty. The said article entails EU as such with separate legal personality for accessing
to the ECHR. In that sense the article reads: 'The Union shall accede to the European Convention for
the Protection of Human Rights and Fundamental Freedoms. Such accession shall not affect the
Union's competences as defined in the Treaties.'12. There are many arguments in favor of accession.
The most frequently used is that the accession to the ECHR will complete the EU system for protection
of human rights13. Even though the expectations are quite high this process is not devoid of
complications and confusion if not clearly defined and elaborated.

Formally the Protocol 14 to the ECHR allows EU to accede to the ECHR, but apart to this the
accession negotiations are set out and rapporteurs are appointed to explore the possibilities of
compromise on the divergences related to the accession14 This process should result in adoption
of accession instrument which will both articulate EU specificity but also take into consideration the
Council of Europe's interests and reform process in general. Anyway various legal and political
implications are to be anticipated.

The former pertain to the more technical issues whereas the latter to the political results these changes
will bring about both to the EU and Council of Europe as such. In terms of legal consequences EU will
become Party to the ECHR and submit its sui generis character to the general functioning of CoE and
particularly to the ECtHR, despite the fact that all Members States of EU are in the same time State
Parties to the ECHR. Such a situation might foster changes in two directions. On one hand for the
overall system of CoE and particularly for ECtHR's and its functioning but also for the EU institutions
and especially the European Court of Justice. When examining CoE and its bodies the the question

12 Op. cit. note 1. Article 6 (2) EU Lisbon Treaty.

13 N. Siskova PhD, 'Eventuality of Accession to European Convention of the Protection of Human Rights and Fundamenatal Freedoms and Related issues', p.1. Available at:
http://www.unc.edu/euce/eusa2009/papers/siskova_12G.pdf

14 Protocol No.14 to the Convention for Protection of Human Rights and Fundamental Freedoms , amending the controlling system of the Convention, Strasbourg, 13.V. 2004; Political Affairs Committee,

The Impact of Lisbon Treaty on the Council of Europe, Rapporteur: Mrs Kerstin LUNDGREN, Sweden, Alliance of Liberals and Democrats for Europe, Information note on the fact-finding visit to Brussels
(9-10 June 2010).
which needs to be posed is whether the EU’s accession will add up to the ongoing reform process. In
addition this might create different political climate, despite the existing intentions to bring the broader
Europe under same umbrella of the human rights protection.

Moreover, the relevant question related to the legal consequences of the EU's accession to the ECHR is
the fact that regardless all EU Member States are represented at the ECtHR by its own judge, the EU
separately will appoint a judge. The intention of the ECHR is clear and that is all European states
systems to be represented in the body responsible for its implementation. This was intended for states
as subjects to international law and not for supranational organizations such EU which represents the
various constitutional systems of its Member States. However, Vice-President Reding in her speech to
the Parliament reaffirmed the position of the Commission to appoint full time judge at the ECtHR 15.
On the other hand, one author points out that the accession to the ECHR and the appointment of a
judge would be very costly step for the EU, which does not guarantee the strengthening of the human
rights protection.

Furthermore, issues that at the same time are of technical but also substantive nature is the European
Commission's stance articulated through Ms.Reding which suggests that the ECtHR should not in
principle interpret the EU law. How this is possible when having EU accessed to the ECHR is unclear?
The main role of ECtHR 'extends to all matters concerning the interpretation and application of the
Convention16, in other words includes revision of domestic legislation and acts the of Member States
towards its citizens. Translated in terms of EU's accession it involves revision of the EU legislation and
acts of its institutions. Should ECtHR do a revision to human rights standards as defined by the ECHR
after the European Court of Justice has adjudicated the matter? However, on the ECJ side, there is risk
that this eventuality would not be appreciated because the ECJ's exclusive jurisdiction on the
interpretation and the application of Community law.

Some authors even justifiably question whether such a revision would be reasonable17. Why? Generally
both the findings of ECJ and ECtHR have been following similar lines and have been complementing
each other18 confirmed also by historic evolve of EC/EU treaties which have clear reference to ECHR,
15 Viviane Redding Vice-President of the European Commisiion for Justice, Fundamental Rights and Citizenship, 'The EU's Accession to the European Convention of Human Rights: Towards More
Stonger and Coherent Protection of Human Rights in Europe' , Hearing of the European Parliament's Constitutional Affairs Committee Brussels, 18 March 2010.p.5.

16 Article 32 ECHR. Op cit. note 2.

17 EU Adhesion...p.1. Op.cit. note. 6.

18 F. G. Jacobs, 'The European Convention on Human Rights, the EU Charter of Fundamental Rights and the European Cort of Justice: The impact of European Union Accession to the European Convention on
Human Rights, pp.291-296. Available at: http://www.ecln.net/elements/conferences/book_berlin/jacobs.pdf .
there might be overlaps. But what if there are discrepancies in the case law? Which judgment would
precede for the EU as such and its Member States? One author believes that even after Lisbon the case
law between both courts will be harmonized, but it does not point out how this will be achieved on
practical level, thus still this remains to be seen19.

Furthermore, what if violation of the ECHR is identified, should EU as such be held accountable or the
respective Member State? The practice of the ECtHR suggests that even an alleged violation was a
result of an EU legislation could not excuse the Member States from responsibility: they could not, by
transferring powers to an international or supranational institution, evade their own responsibility
under the ECHR20. However, this is the situation when the organization is not Contracting Party, and
thus cannot be found in violation of the provisions deriving out of particular treaty. But what happens
in the case of EU and the accession to ECHR? In that direction one should ask whether the ECtHR will
retain or abandon above-mentioned position.

If opts for the already established practice than EU's accession to ECtHR is obsolete, and there is no
reason as already pointed out stance to appoint a judge and make whole exercise of accession
negotiation. If the intention is to held EU and its institutions responsible for the breaches of the ECHR
than there is validity of the legally envisaged accession whereas having ECtHR as final adjudicator
regarding the protection of human rights in broader Europe. In same time one should have in mind the
fact that ECJ has supremacy of interpretation of the EU law, actually this is what Reding suggests
when pointing out that the ECtHR should not in principle interpret the EU law.

However, it would be rather hard for the ECtHR to take up such a rigid stance not to interpret the EU
law and lawfulness of the act or omissions of its bodies when revising alleged breaches of the ECHR.
Should then both courts as a matter of principle concur with each other? Is this in line with proper and
full protection of human rights, both courts making the similar findings or is 'politically' justifiable
solution? Then what is the reason behind the accession? The very idea of accession to the ECHR
implies that EU acts would become subject to review by the ECtHR for their compliance with the
ECHR after the local remedies have been exhausted. The fact that EU was not a party to the ECHR

19 L.Wilderhaber, 'European Union, European Convention on Human Rights, and Human Rights Protection in Europe ', International Symposium on EU-Integration and Guarantee of Human Rights, Session I at
at Ritsumeikan University, Ritsumeikan Law Review No. 26, 2009 pp.156-161.

20 Waite and Kennedy v. Germany (GC), Appl. No. 26083/94, ECtHR decision of 18 February 1999, para 67.
See also Matthews v. United Kingdom, ECtHR(GC) decision of 18 February 1999, para 32. 'Member States responsibility therefore continues even after such a transfer”
meant that it was not legally bound by it, and that it could not participate in the proceedings before the
ECtHR against its Member States, even those involving its own legal acts.

At this point the doctrine on equvalent protecion arises which either will gain more significance or it
will be abandoned completely with the EU accession to the ECHR21. In short the doctrine was
developed by the ECtHR which found the claims against EU Members States involving EC
inadmissible. This approach rose out of presumption that EU legal order provides protection which is
equivalent to that of the ECHR, and the action taken in compliance with such legal obligations would
be justified as long as the organization is considered to protect fundamental rights in a manner which
can be considered at least equivalent to that for which the ECHR provides22.

In fact this doctrine confirms that parallel rights protection system co-exists along with the ECHR,
which allows to EU/EC and Members States certain margin of appreciation in adopting legislation and
policy measures as long this is in compliance with ECHR standards. The most relevant question then is
should this margin of appreciation be reviewed and more importantly quashed by the ECtHR if found
to be breaching the ECHR, and after ECJ had adjudicated the matter? In that case which is the last
instance adjudicator? If it tangles the protection of human rights and respect of the ECHR and if all
procedural requirements are satisfied then there is no reason why ECtHR should not conduct legal
assessment. How then it can be expected for ECtHR not to interpret EU's law is not quite clear.

The Bosphorus case has received a wide interest and was subject to much criticism. One author was
blunt in its statement that ECtHR “missed the opportunity to establish a clear, coherent and
uncompromising approach to the protection of human rights within the Community legal order” 23.
Other comments have been more reserved saying that case is “an illustration of the singular nature of a
multidimensional European legal space, which is pluralistic and hybrid in nature, in which there exists
no straightforward hierarchical relationship in human rights cases”24. Whereas some have found the
doctrine as potentially providing a deep and specific insight into the level of fundamental rights

21 L. Šaltinyt, 'European Union Accession to the European Convention of Human Rights: Stronger Protection of Fundamental Rights in Europe?' Jurisprudence, 2010 2(120) pp.177-196. Available
at:http://www.mruni.eu/lt/mokslo_darbai/jurisprudencija/paskutinis.../dwn.php?id...

22 Bosphorus Hava Yollari Turizm v. Ireland, App. No. 45036/98, ECHR, 30 June 2005.

23 S. Peers, ' Limited responsibility of European Union member states for actions within the scope of Community

law'. Judgment of 30 June 2005, Bosphorus Airways v. Ireland, Application No. 45036/98. European
Constitutional Law Review. 2006, 2: 44355.

24 S. Douglas-Scott, Case comment on Bosphorus Hava Yollari Turizm Ve Ticaret Anonim Sirketi v. Ireland, application No. 45036/98, judgment of the European Court of Human Rights (Grand
Chamber) of 30 June2005, (2006) 42 E.H.R.R. 1. Common Market Law Review. 2006, 43: 243?254.
protection afforded by the EU and the ECJ in individual cases, whilst still retaining the autonomy of
the EU legal order25.

In addition, there two paradoxical effects out of the doctrine of equivalent protection taken together
with solutions included in the Lisbon Treaty. This doctrine on one hand gains more weight by giving to
the Charter on Fundamental Rights binding legal effect and thus far closing the EU gap of fundamental
rights protection, whereby EU's accession to ECHR intends to strengthen Council's of Europe human
rights protection system. It seems that EU's role in whole accession assignment is two fold. To
influence its own system, but also to add up to the broader system of human rights protection. But is
the accession only led by inspiration for protection of human rights or for achieving greater control
over the broader system of protection? What should not be forgotten is that EU as Party to ECHR will
also be represented at the Committee of Ministers, body that supervises implementation of the
judgments brought by the ECtHR. In simple words if the ultimate motivation is ensuring greater
protection of human rights then the accession is justifiable, but if guided by the incentive of supremacy
of EU legal order as oppose to the 'others' the reason behind the accession exercise should well be
questioned and in same time criticized.

Conclusion
The analysis has established that it is mandatory the EU's accession to the ECHR to be done by way of
precisely clarifying the roles, competences and jurisdictions and particularly the relationship between
ECtHR and ECJ, since in the same time there is substantive similarity between the Charter and the
ECHR. In any case many procedural questions arise which is not obvious how it will be tackled.
Therefore, EU individually should contribute toward clarification of the matters which are uncertain
but also the negotiation should answer and elaborate these questions for simple purpose of
strengthening the protection of human rights on European level. It is evident that EU as such would
like to have an upper hand even broadly through the Council's of Europe protection system but should
in the same time be aware of the responsibility behind such aspiration. Thus, its motivation and
intention should be as clear as possible in order not to produce space for political leverage and its
institutional and Members States interest to out weight the protection of human rights.

25C. 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): 87/130, p. 94.