The final version of the draft accession agreement was concluded on 5 April 2013. It will allow the EU to become a contracting party to the European Convention on Human Rights (ECHR), arguably on more than equal footing with the other Contracting Parties, which are all States.

The EU’s accession to the ECHR is a long and on-going journey. Indeed, accession has been subject of political discussion since the 1970s. The early debate culminated in 1994 with the Court of Justice terminating all accession attempts under the old Treaty framework. However, the situation changed fundamentally on 1 December 2009 with the entry into force of the Lisbon Treaty. Accession has not only become possible, it has become an obligation. The conclusion of the draft accession agreement is an important step, but it is by no means the last. Next, the Court of Justice of the European Union will give its opinion on the compatibility of the accession agreement with EU law.

The EU’s Privileges Pre- and Post-Accession

Even before the EU’s accession, the ECtHR deals implicitly or explicitly with EU law more often than one would expect. To give the gist of the relevant case-law of the ECtHR: Member States retain responsibility for their acts, including those adopted within the context of EU law, but acts adopted by the EU institutions proper fall outside of the ratione personae of the Convention. For instance, as things stand at present Member States remain responsible for primary EU law as the consequences of a treaty, in the adoption of which they have been involved. It is, further, possible to bring an application against a (particular) Member State for implementing EU law, irrespective of whether that state has had any margin of discretion in implementing EU law. If the state has had no margin of discretion, a rebuttable presumption of equivalent protection applies which leads the ECtHR to exercise full judicial review only if the protection under EU law has proved in the case before it to be ‘manifestly deficient’ in the individual case (the Bosphorus presumption). The presumption of equivalent protection in Bosphorus has placed the EU for many years in a privileged position as compared to its Member States, even without being a party to the Convention. The ECtHR does not review the compliance with the Convention of EU Member States’ acts implementing EU law in the ordinary case. The accession agreement recognises the EU’s special position and in a different way codifies and institutionalises it, but it takes away the Bosphorus privilege.

A central concern in the negotiation of the draft agreement was the Court of Justice’s judicial autonomy and indeed even monopoly to interpret EU law.  The core threat of EU accession for the Court’s autonomy to interpret EU law emanates from two situations: first, the ECtHR might determine who the right respondent is in any given case; and second, the ECtHR might attribute responsibility to and apportion it between the EU and its Member States. In both events, the ECtHR would simply not be able fully to disregard the power division between the EU and its Member States – both in law and in practice. The complex and dynamic task division between the EU and its Member States could lead the ECtHR to offer an interpretation of substantive EU law binding on the Court of Justice. The EU is a compound legal order consisting of numerous international actors and the largest share of EU law is implemented or applied by national authorities. This means that it requires national support and involvement in order to become effective. As a consequence, if the ECtHR’s interpretation extends to who is responsible the potential challenge to the judicial monopoly, and ultimately the authority, of the Court of Justice is of a different quality than any potential challenge presented by the judicial authority of a national court. Furthermore, the authority of the Court of Justice depends much on the support of national courts. This becomes particularly apparent in the preliminary ruling procedure (Article 267 TFEU), under which most of the fundamental judicial decisions were taken that integrated the EU legal order. Ultimately, this discussion on the EU’s autonomy boils down to the question of how integrated and irreversibly interlocked the EU and national legal orders and judicial systems really are in the face of an external challenge, such as confirmation by a well-respected external judicial authority that the EU breaches human rights. Will such a finding of the ECtHR flare up resistance towards EU law by national courts or public opinion?

The co-respondent mechanism with the prior involvement procedure is aimed to protect the autonomy of the EU legal order and of the Court of Justice in particular. It stipulates that: ‘[w]here an application is directed against one or more member States of the European Union, the European Union may become a co-respondent to the proceedings in respect of an alleged violation notified by the Court if it appears that such allegation calls into question the compatibility with the Convention rights at issue of a provision of European Union law, including decisions taken under the TEU and under the TFEU, notably where that violation could have been avoided only by disregarding an obligation under European Union law.’ The Union has further made a declaration that it ‘will request to become a co-respondent to the proceedings’ if these requirements are met. Additionally, if the Court of Justice has not previously ruled on the matter, the agreement is that the ECtHR should request the Luxembourg Court to do so before giving its own ruling. The co-respondent mechanism permits the ECtHR to refrain from determining who the correct respondent is or how responsibility should be apportioned. Indeed, the draft agreement  declares joint responsibility of the respondent and co-respondent to be the common case: ‘If the violation in respect of which a High Contracting Party is a co-respondent to the proceedings is established, the respondent and the co-respondent shall be jointly responsible for that violation, unless the Court, on the basis of the reasons given by the respondent and the co-respondent, and having sought the views of the applicant, decides that only one of them be held responsible.’ This will for most cases unburden the Strasbourg Court from the task of assessing the distribution of competences between the EU and its Member States. However, it does not rule out the possibility that the ECtHR chooses to apportion responsibility in the individual case. Furthermore, while no High Contracting Party may be compelled to become a co-respondent, the Strasbourg Court may terminate the participation of the co-respondent. Both actions of the ECtHR imply a prior decision on how the responsibility should be apportioned or attributed. Hence, the co-respondent mechanism tries to strike a balance between not limiting the formal competences of the ECtHR but determining how these competences are usually exercised in practice. In any event, in view of the rather cautious approach of the Strasbourg Court in the past it can be expected that it will not meddle with the complex and dynamic division of powers between the EU and its Member States where this is not judged absolutely necessary.

The special position accorded to the Court of Justice should be seen both as accommodating the Court’s concern with its judicial autonomy and acknowledging the particularities of the EU legal order and the judicial power in the EU.  The classic division of tasks between the legislating EU and implementing Member State can for instance result in a situation where EU law is implicitly or explicitly challenged in Strasbourg in the context of an alleged violation through a national act of implementation before any Court at the EU level has been consulted. This also justifies involving a court at the EU level before ruling on the compliance of EU law with the Convention. It will certainly force the Court of Justice to deliver in the individual case, rather than being able to hide behind a general presumption of equivalent protection. After receiving the Court of Justice’s opinion, the Strasbourg Court will have to scrutinise and rule whether the Convention has been breached. It can only find the specific opinion either correct (offering equivalent protection; no violation) or incorrect (misinterpreting the Convention; violation). It cannot hide behind general considerations of the human rights protection in the EU legal order. The times of Bosphorus are over.

The (Un-)Likeliness of an Open Conflict

After accession, the ECtHR’s decisions will be formally binding on the Union as a matter of international law. This could in an extreme case result in a finding of non-compliance if the Court of Justice rejects an interpretation of the ECtHR of internal matters of EU law. Whatever status the Court of Justice will give rulings of the ECtHR after accession, it is difficult to see in practice how the Court of Justice could in a ‘Union of law’ follow an argument or give a ruling that openly clashes with the protection of human rights given by the ECtHR. This would be problematic both before and after accession, and irrespective of whether the EU is a party to the case. At the same time, the justification deficit would be much lower if the Court does not accept the ECtHR’s position on competence matters of internal EU law that has no substantive impact on human rights protection. We may conclude that the risk of a potential conflicting interpretation of the ECHR and the Charter would not increase through accession. With the co-respondent mechanism with the prior involvement procedure it will be lower than at present. Pre-accession it is conceivable that a national court delivers a decision based on a preliminary ruling of the Court of Justice and that this decision (after national remedies have been exhausted) is taken to the ECtHR which might decide that the country has violated the ECHR. The ECtHR’s ruling on the case could entail the conclusion that the preliminary ruling of the Court of Justice conflicts with the ECHR, without further involvement of the EU institutions.

The EU as an International Actor with Internal Tensions

Accession will advance the Union’s ambitions as an international actor separate from its Member States. The EU will become a ‘state-like´ party to the Convention in the sense that it will be ‘on equal footing with the other Contracting Parties’, which are all states. At the same time, the EU and, in particular its Court of Justice have been given an exceptional position within the Convention system. From the perspective of the EU, this primus inter pares position appears to be the best solution: having all the duties of states, but more rights and influence – both during the negotiations and before the Strasbourg Court. This special position is a recognition of the EU’s particularity and success as an integration organisation. At the same time, the discussion’s focus on the EU’s and the Court of Justice’s autonomy raises doubts about the EU’s maturity as an integration organisation. Accession will bring the test of whether the EU has reached the necessary maturity. Is it sufficiently integrated to join the ECHR on an equal footing as the other Contracting Parties, or will it become the victim of its own success because despite all integration it cannot endure the internal tensions that might result from joining an external human rights regime?

In the light of the Court of Justice’s far-reaching interpretation of the duty of cooperation and in the light of the Union’s new role in Strasbourg Member States will be subject to new European law constraints in relation to the ECHR. Furthermore, accession will substantively contribute to the on-going process in which European systems of human rights protection become increasingly interwoven and interlocked. It will allow the Court of Justice and the ECtHR to enter into a formal judicial discourse. Indeed, within the ever increasing scope of EU law, the Court of Justice will take the role of the national courts in international human rights discourse. However, it would be wrong to think that the Court of Justice and the ECtHR are the only two European courts. Both depend on the support of the national judiciary. Resistance towards external human rights constraints has flared up in several EU Member States, including the UK. Accession and the shift of the discourse from national courts to the Court of Justice is unlikely to have a calming effect. Indeed, the question of which public authority – Brussels, Strasbourg or the national capital – may decide the applicable standard will become even more controversial with accession.

An extended discussion of the EU’s accession to the ECHR was published in the Modern Law Review < http://www.modernlawreview.co.uk> in March 2013.

Christina Eckes is Associate Professor at the Amsterdam Centre for European Law and Governance, University of Amsterdam

Suggested citation: C. Eckes, ‘One Step Closer: EU Accession to the ECHR ‘ Const. L. Blog (2nd May 2013) (available at http://ukconstitutionallaw.org).