On this page you will find information and documents relating to the negotiations between the 47 Member States of the Council of Europe and the European Commission (“47 + 1”) on an agreement for the accession of the European Union to the European Convention on Human Rights (“the Convention”). After being postponed because of the Corona pandemic, these negotiations will now be formally resumed on 29 September 2020.
A first round of negotiations with a view to allowing the EU to accede to the Convention started in 2010, after the entry into force of the Lisbon Treaty (1.12.2009) which inserted in the Treaty on European Union an Article 6(2) according to which “The Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms”. These negotiations resulted in 2013 in a unanimously adopted agreement at negotiators’ level on a comprehensive package of legal instruments setting out the modalities of accession of the EU to the Convention. However, on 18 December 2014, the CJEU delivered its Opinion 2/13, concluding that the agreement was not compatible with Article 6(2) TEU or with Protocol (No 8) relating to Article 6(2) of that Treaty. This Opinion was followed by a reflection period during which the EU member States and the European Commission internally considered how to amend the draft agreement so as to address the objections of the CJEU.
This process led to the President of the European Commission informing the Secretary General of the Council of Europe on 31 October 2019 that the European Union stood ready to resume the negotiations on its accession to the European Convention on Human Rights. On 15 January 2020, the Ministers’ Deputies of the Council of Europe instructed the Steering Committee for Human Rights of the Council of Europe to finalise as a matter of priority, in co-operation with the representatives of the European Union, in an ad hoc group 47+1 and on the basis of the work already conducted, the legal instruments setting out the modalities of accession of the European Union to the Convention. Against this background it was initially decided that negotiations would be resumed on 24 March 2020. Meanwhile, they had to be postponed to 29 September 2020 because of the pandemic.
Reasons for EU Accession: still relevant today
The reasons why it is desirable for the EU to accede to the Convention are described in the following publication, at p. 13 et seq.
While, fortunately, there appears to be some harmony in the case-law of the two European Courts, the status quo cannot be considered as a valid alternative to EU accession. As the paper below argues in light of many concrete examples, a closer look indeed shows that the current situation is not satisfactory. For it does not allow an adequate representation of the EU in the procedure before the European Court of Human Rights, nor is it capable of ensuring in the long-term comprehensive and stable consistency between EU law and the Convention.
Moreover, giving up on EU accession to the Convention would entail the risk of undermining the very idea of a collective understanding and enforcement of fundamental rights. For why should European States remain the subject of an external control of their respect for fundamental rights if the EU is not? This “inequality before the Convention” could initiate a process leading to the current European architecture of fundamental rights protection being unravelled altogether. Hence, there is no return from Article 6(2) TEU. Neither is there from actually implementing it.
The need for EU accession as the most efficient way to guarantee harmony between the Convention and EU law takes on particular significance when considered from the perspective of the domestic courts which, when they apply EU law, have to do so in compliance with the Convention (on this, see the “Key Questions” tab). In this connection it can indeed be noted that an increasing number of representatives of the highest domestic courts of the EU Member States publicly express their concerns about the difficulties encountered by them when confronted with a set of unharmonized international fundamental rights which they have to apply simultaneously. Examples of such statements include the speeches below by Mr Francisco Pérez de los Cobos Orihuel, President of the Spanish Constitutional Tribunal (at p. 49 et seq. of the book), by Mr Justice Clarke, Chief Justice of Ireland, and by Ms Beatrijs Deconinck, First President of the Belgian Court of cassation.
After being postponed because of the Corona pandemic, the negotiations on EU accession to the Convention will now be formally resumed on 29 September 2020.
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