EU accession to the European Convention on Human Rights (ECHR)

06-07-2017

Neither of the founding treaties of the European Communities – the Treaty of Paris (1951) or the Treaty of Rome (1957) included any reference to fundamental rights. Nonetheless, in its case law the European Court of Justice started to treat such rights as unwritten 'general principles of Community law', thereby granting them the status of primary law. As for the source of these general principles of Community law, the Court referred to the common constitutional traditions of the Member States, and to international treaties to which at least a majority of Member States were party, in particular the European Convention on Human Rights (ECHR) of 1950. When the European Union was formally established by the Treaty of Maastricht (1992), this case law of the Court of Justice on the dual sources of fundamental rights in the EU was codified in the new Treaty on European Union in its Article F(2). The entry into force of the Charter of Fundamental Rights as a binding legal act in 2009 did not, however, deprive the ECHR of its role in the EU legal system as a source of fundamental rights in the form of general principles. The Treaty of Lisbon provided for a duty of the EU to accede to the ECHR. However, when the negotiated agreement was put to the Court of Justice for opinion, it ruled (in December 2015) that the agreement did not provide for sufficient protection of the EU's specific legal arrangements and the Court's exclusive jurisdiction. For the time being, no new accession agreement has been drafted, but both the Parliament and the Commission underline the need for EU accession. Scholars remain divided, some considering that accession would bring added value, whilst others express the view that accession would actually do more harm than good to EU citizens.

Neither of the founding treaties of the European Communities – the Treaty of Paris (1951) or the Treaty of Rome (1957) included any reference to fundamental rights. Nonetheless, in its case law the European Court of Justice started to treat such rights as unwritten 'general principles of Community law', thereby granting them the status of primary law. As for the source of these general principles of Community law, the Court referred to the common constitutional traditions of the Member States, and to international treaties to which at least a majority of Member States were party, in particular the European Convention on Human Rights (ECHR) of 1950. When the European Union was formally established by the Treaty of Maastricht (1992), this case law of the Court of Justice on the dual sources of fundamental rights in the EU was codified in the new Treaty on European Union in its Article F(2). The entry into force of the Charter of Fundamental Rights as a binding legal act in 2009 did not, however, deprive the ECHR of its role in the EU legal system as a source of fundamental rights in the form of general principles. The Treaty of Lisbon provided for a duty of the EU to accede to the ECHR. However, when the negotiated agreement was put to the Court of Justice for opinion, it ruled (in December 2015) that the agreement did not provide for sufficient protection of the EU's specific legal arrangements and the Court's exclusive jurisdiction. For the time being, no new accession agreement has been drafted, but both the Parliament and the Commission underline the need for EU accession. Scholars remain divided, some considering that accession would bring added value, whilst others express the view that accession would actually do more harm than good to EU citizens.