Completion of EU Accession to the ECHR

Introduction
Essentially there can be no doubt as to the significance that Member States and the Treaties attach to fundamental rights. It is declared that the Union is founded inter alia on “the respect for human rights and fundamental freedoms”. It also provides that the Union must respect fundamental rights, as guaranteed by the European Convention on Human Rights (ECHR) and as they result from the constitutional traditions common to the Member States. They are general principles of Community law. Under Article 7, a “serious and persistent breach” of fundamental rights by a Member State may result in the suspension of rights derived from the Treaty, including voting rights. In practice, the pursuit of respect for fundamental rights in the context of the Union has far-reaching internal and external dimensions and concerns. This essay seeks to demonstrate that concerns only reinforce the undeniable necessity for a consummated policy of human rights protection within the EU. A stronger commitment to safeguard respect for fundamental human rights would provide the EU with the ethical foundations which have accrued due to its origins as a common market. This is reinforced on the grounds that the 2007 Reform Treaty confers legally binding status to the Charter of Fundamental Rights and authorises the EU to acquire international legal personality. This allows for EU accession to the ECHR, which would ensure consistency in the interpretation and application of human rights, whilst strengthening and legitimising their place within EU law.

The European Court of Justice (ECJ) has progressively developed unwritten general principles of Community law regarding human rights. In Internationale Handelsgesellschaft, the ECJ declared that respect for fundamental rights forms an integral part of the general principles of law protected by the Court, and that this protection must be ensured within the framework of the structure and objectives of the Community. In Nold v Commission this notion was extended by maintaining that, in safeguarding fundamental rights, it would be inspired by the constitutional traditions common to the Member States as well as the guidelines provided by international treaties for the protection of human rights. Therefore, rights prescribed in treaties such as the ECHR would be considered as part of the general principles of EC law.

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The ECJ’s developments in the sphere of human rights were bolstered by the amendments introduced by the Treaty of Maastricht and the Treaty of Amsterdam. This is demonstrated by Article 6(2) TEU, which provided that the Union would respect the fundamental rights guaranteed by the ECHR and by national constitutional traditions. The Amsterdam Treaty went further to affirm that the Union is founded on the principles of liberty, democracy, and respect for human rights and fundamental freedoms. Furthermore, the new Article 7 allowed the Council to suspend some of the rights of a Member State responsible for a serious and continual breach of the fundamental principles of Article 6. These treaty developments irrefutably signified an important political shift for the EU in order to institute the role of fundamental human rights within the Union.

Although promulgated in order to give greater visibility to the protection of fundamental rights, the Charter of Fundamental Rights includes several innovations, such as the prohibition on reproductive human cloning, guarantees on data protection and on good and transparent administration.As with the ECHR, the Charter contains civil and political rights, but it also includes economic and social rights and certain third generation rights. The Charter has acutely drawn inspiration from the ECHR, yet it has attempted to modify the ECHR with the intention of rendering it simpler, more up-to-date, and expansive. The scope of the protection to be afforded by the Charter is therefore not entirely equal to that afforded by the Convention.

Although the protection of fundamental human rights has occupied a progressively notable status within the European Union, its development within the framework of EU law has been subject to a number of criticisms. Firstly there are two significant gaps which against that background are consternating and which need to be filled. The first is the absence of enumeration of fundamental rights in the Treaties even though the Treaties themselves have, in the words of the ECJ, acquired the status of a “constitutional charter”. The second is the fact that neither the EU nor the Communities are party to the ECHR or to any other international human rights instrument. The proposal for a Charter of Fundamental Rights underscores both these anomalies. A degree of scepticism exists regarding the European Court of Justice’s capability to implement an acceptable system of human rights protection within an entity primarily established as an economic institution. The ECJ has been condemned for attempting to act as another Human Rights Court, when the Strasbourg Court was already created with an express human rights jurisdiction. Similarly, it is contended that the ECJ has attempted to widen Community competences “through the back-door” by manipulating the rhetorical force of human rights to advance the commercial goals of the common market.

A shared dedication to human rights is a potentially unifying force and can provide a common foundation for the EU legal system. In Bosphorus v Ireland, the Strasbourg Court analysed the system of protection of fundamental rights within the EU and was satisfied with the system of observance of Convention rights under EC law. The Court held that State action taken in compliance with the obligations flowing from membership of an international institution is justified “as long as” fundamental rights are protected in the spirit at least equivalent to that for which the Convention itself provides. In this way, although its objectives came into existence from considerations of economic integration, the development of the Community demonstrates the existence of moral and social considerations that extend beyond their economic significance. The Lisbon Treaty aims to implement the reforms necessary to bring the EU closer to this ideal, by giving legally binding status to the Charter, as well as allowing the EU to acquire legal personality so that it can become a signatory to the ECHR. It follows that the EU’s accession to the Convention is of a high political and legal significance.

From the perspective of the citizens, accession will guarantee that any person claiming to be a victim of a violation of the Convention by an institution or body of the Union can bring a complaint against the Union before the Strasbourg Court under the same conditions as those applying to complaints brought against Member State In political terms, accession signifies that the European Union reasserts the pivotal role played by the Convention system for the protection of human rights in Europe, beyond the borders of the 27 Member States. By acceding to the Convention, the European Union itself embeds its weight behind the Strasbourg system of external judicial control in the area of fundamental rights by integrating its legal order absolutely and formally to that control system. This will amplify the credibility both internally and externally of the EU’s strong commitment to fundamental rights.

Concern has been expressed that the Charter contributes to conflicts in the Courts’ interpretations, and thus subverts existing protection by creating the risk of inconsistency and arbitrariness. The legal advantage of accession will be important in three respects: First, it complements the introduction of a legally binding Charter of Fundamental rights. Accession to the Convention will warrant that the case-law of both Courts i.e. the Court in Strasbourg and our own “Constitutional Court” in Luxembourg, evolves in stride. It is therefore an opportunity to develop a coherent system of fundamental rights protection throughout the continent, with a robust assurance for a Europe truly united by law and values. Subsequently, it is argued that an effective way of reconciling the issues regarding fundamental human rights within the EU would be the accession of the Union to the ECHR.

Accession has been titled as “the key” to securing the requisite consistency in the interpretation and application of human rights, as it would provide a clearly defined constitutional bedrock for the protection of those rights. Article 52(3) deals with the potential overlap of rights by providing that where rights in the Charter correspond to rights in the Convention, the meaning and scope of those rights shall be uniform to those entrenched in the ECHR. However, this does not guarantee that the Charter will not oppose the jurisprudence of the ECtHR. Even when the wording of the Charter and the Convention is indistinguishable, it is possible that the two Courts may interpret the same right divergently. This concern is further reinforced in that the new Treaty of Lisbon explicitly recognises the legal value of the Charter.

Accession by the Union and Communities would thus render their institutions and activities subject to the same degree of administration as those of the Member States. This would have the undeniable capacity to fill the substantive gap in the protection of fundamental rights. There would no longer be a need, where an individual sought to rely on a provision of the ECHR before the Community Courts, to depend on the “prediction” of fundamental rights as “general principles” of Community law. Accession to the ECHR would contribute to the further advantage that the Strasbourg Court would be commissioned to act as an external control on the jurisprudence of ECJ, as it already does in the case of the Member States. This would guarantee the status of the ECHR as the primary medium for the protection of human rights in Europe.Furthermore, if the Treaty is ratified, the acts of the institutions of the EU and of Member States would now be susceptible to judicial review by the ECJ for compatibility with the legally binding Charter. If a divergence in interpretation between the ECJ and the ECtHR were to emerge, Member States would face a conflict between complying with their obligations under EU law, as well as those under the ECHR.

As a result, the suitability of a parallel jurisdiction being exercised by the ECJ is called into question by the very existence of the Strasbourg Court because it administers a system which is specifically tailored to the protection of human rights. As Von Bogdandyobserves, “There are doubts whether the Union’s institutions are deeply enough embedded in the public discourses, and whether they wield enough political and moral clout in order to devise and implement such policies”. The ECJ and the ECtHR share no formal link to ensure corresponding interpretations. The ECtHR interprets and applies the Convention with the sole consideration of human rights, whereas, the ECJ, in furthering the objectives of the Community, interprets fundamental rights in conjunction with largely economic considerations. Consequently, the same issue may appear before both courts, but their respective approaches and objectives may result in different conclusions.

This point is aptly demonstrated by the cases of Grogan and Open Doors. The cases appeared simultaneously before the ECJ and the ECtHR respectively, and concerned the publication and distribution of information about the availability of legal abortions in the United Kingdom. The ECJ addressed the issue in relation to the economic freedom to provide services under Article 49 TEU, and, as a result, the ruling was narrowly based on the fact that there was no commercial link between the providers of the abortion service in one Member State and the providers of the information in the other Member State. Therefore, the ECJ simply could not address the issues of freedom of expression and the freedom to receive and impart information. Conversely, the ECtHR considered that there had been a violation of Article 10 ECHR as the absolute nature of the injunction was disproportionate.

Coppel and O’Neill have severely criticised the ECJ’s approach in Grogan: “The high rhetoric of human rights protection can be seen as no more than a vehicle for the court to extend the scope and impact of European law”, displaying a clear bias towards market rights instead of ensuring the protection of fundamental human rights. As a result, there is concern that human rights protection within the EU entails the extension of Community competences over areas which should remain the privilege of the Member States. Maduro contends that the Charter reflects diametrically opposing perspectives: for some, it reinforces limits on the power of the EU and reasserts the control of States; while for others, the Charter is the starting point of a “truly constitutional deliberative process and the construction of a European political identity”. The original declaration of the Charter outside the framework of the Treaties reflected this tension as to the role of human rights in the Union legal order. While there is a general consensus among Member States on core human rights, there is disparity on certain areas. With the rapid geographical expansion of the Union to include countries without well-evolved internal human rights protection, the EU faces an obstinate challenge in imposing uniformity of human rights standards across Member States, particularly given their political, cultural, and ideological diversity.

The consequence of accession is that the ECJ would therefore have an external scrutiny in the field of fundamental human rights. Thus if the ECJ unsatisfactorily interpreted the Convention or avoided a particular human rights issue, the ECtHR could find a violation and give a correct interpretation of the Convention. Accession would therefore underpin the achievements of the ECtHR, whilst strengthening the system of human rights protection within the EU, and preventing inconsistencies in the substance and interpretation of rights.

These concerns nevertheless only reinforce the notion that a solid commitment to the protection of fundamental human rights is essential within the framework of EU law. Far beyond accumulating the power of the Union and the ECJ, a codified, fully-fledged human rights policy could potentially act as a constraint on that power. The uncertainty of the EU’s human rights standards and the open-ended competences of the ECJ could be significantly constrained by a coherent system of human rights protection within the EU.

Secondly, accession gives leeway to the Strasbourg Court to attribute acts adopted by the institutions or bodies of the Union directly to the Union instead of attributing them, albeit implicitly, to 27 Member States collectively. The Union’s specificity as a distinct legal entity vested with autonomous powers will then be adequately reflected in proceedings before the Strasbourg Court.

Thirdly, the Union will have at its disposal all rights that the Convention awards to the Contracting Parties to defend the human rights conformity of its acts before the Strasbourg Court. The Union will also be able to be represented in the Strasbourg Court with an EU judge.

Protocol Nr. 8 to the Lisbon Treaty requires a certain number of substantive guarantees necessary in an agreement relating to the accession so that the specific characteristics of EU law will be preserved. The Recommendation to the Council, which the European Commission adopted, takes these requirements into full account. Two have been reflected in the draft report of the Honourable Member of Parliament Mr Ramon Jauregui:

It is clear that the Union’s competences and the powers of its institutions as defined in the Treaties may not be affected by the accession. A provision in the accession agreement will reaffirm this. Likewise the accession of the European Union may not affect either the situation of individual Member States in relation to the ECHR, to the Protocols thereto and to reservations. The negotiations should therefore ensure that the Accession Agreement creates obligations under the substantive provisions of the Convention only with regard to acts and measures adopted by institutions or bodies of the Union.

This essay has sought to demonstrate that the EU has evolved into a sophisticated legal and political entity of which human and social rights protection is an essential element. A firm dedication to the protection of fundamental rights has provided the EU with the ethical basis it initially lacked, allowing the ECJ to work towards uniting not only our common economic interest, but also our common humanity. Accession to the ECHR would be a crucial step towards this unity, strengthening and legitimising EU human rights protection, whilst resolving any potential conflict with the ECtHR. However, accession should not be seen as the final step – the protection of human rights within the EU will inevitably continue to be a topic of live debate and discussion, and it is certain that the Lisbon Treaty will only further reinforce the development of a fully-fledged human rights policy within the framework of EU law.

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