European Union: ECJ Unexpectedly Opines Against Validity Of Draft EU Agreement To Accede To ECHR

On 18 December 2014, the Court of Justice of the European Union ("ECJ") delivered an eagerly awaited opinion on the accession of the EU to the European Convention on Human Rights and Fundamental Freedoms ("ECHR"). The ECHR is an international agreement signed by the Council of Europe which entered into force in 1949 and comprises 47 Member States including all 28 EU Member States. The European Court of Human Rights (ECtHR) was established under the ECHR.

The issue of the EU's accession to the ECHR is almost as old as the EU itself. However, great steps forward have been made, particularly in the past decade. Earlier, in 1996, the ECJ delivered an opinion to the effect that there was no legal basis at that time for the EU to accede to the ECHR. The importance of the EU's observance of human rights was nevertheless reinforced significantly with the coming into force of the Treaty of Lisbon in 2009. Not only did the Treaty of Lisbon make the Union's bill of rights - the Charter of Fundamental Rights - legally binding, but also Article 6(2) of the Treaty of European Union made it a treaty obligation that the EU "shall accede to the ECHR".

On 5 April 2013, a draft accession agreement was agreed upon following negotiations which had commenced in 2010. One of the steps contemplated by the draft agreement was the obtaining of an opinion from the ECJ on whether the agreement was compatible with the EU Treaties. In July 2013, the Commission asked the ECJ to give an opinion on the compatibility of the draft agreement with EU law.

Opinion 2/13 on the draft agreement on the accession of the EU to the ECHR (the "Opinion"), delivered by the ECJ on 18 December 2014, is significant as it postpones, for the time being, any progression towards the EU acceding to the ECHR. The Opinion identifies problems in the draft agreement with regard to the compatibility with EU law of the EU's accession to the ECHR.

In its Opinion, the ECJ noted that as the EU is not a State like the other ECHR Member States, its particular characteristics must be duly accounted for in an accession agreement.

The Opinion demonstrates the ECJ's fears as to the possibility of the circumvention of the preliminary ruling procedure of the ECtHR. Under Protocol 16 to the ECHR, signed in 2013, the superior courts of ECHR Member States may request from the ECtHR an advisory opinion on the application of or the interpretation of the rights protected under the ECHR. The ECJ points out that the draft agreement does not contain any provision which clarifies the relationship between the preliminary ruling procedure and the ECHR opinion request system.

As a result of accession, the ECHR would be binding upon the institutions of the EU and on its Member States, and would therefore form an integral part of EU law. In that case, the EU, like any other ECHR Contracting Party, would be subject to external control by the ECtHR. In essence, the accession as provided for under the draft agreement would enable the ECtHR to act as an external supervisor not only for the EU courts but also the EU's other institutions. Essentially what seems worrying for the ECJ is that, in the sphere of fundamental rights, it would inevitably be the ECtHR which would have the final say. It follows that ECtHR judgments would become binding on the EU and all its institutions and that, by contrast, the interpretation by the ECJ of a right recognised by the ECHR would not be binding on the ECtHR. The ECJ, designated the 'guardian' of the EU treaties, does not accept this possible supremacy of the ECtHR over the interpretation of EU law, including the Charter.

The ECJ further states that accession is liable to undermine the autonomy of EU law as well as adversely affecting the division of powers between the EU and its Member States. Where the rights recognised by the Charter correspond to those guaranteed by the ECHR, the power granted to Member States by the ECHR must be limited to that which is necessary to ensure that the level of protection provided for by the Charter and the primacy, unity and effectiveness of EU law are not compromised. The draft agreement does not contain any provisions addressing these concerns.

Moreover, under Article 344 TFEU, the ECJ has exclusive jurisdiction in any dispute between the Member States and between those Member States and the EU regarding compliance with the ECHR in matters of EU law. Accession risks undermining this provision unless textual amendments are included in this respect.

Undoubtedly, the Opinion comes as a significant setback to the accession process. If amendments to the text of the agreement are made specifically addressing the ECJ's concerns, progression may still be made in future. For the moment, negotiations must recommence within the Council and accession is not envisaged for the near future.

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