Completion of EU accession to the European Convention on Human Rights

In “A New Push for European Democracy”

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Discussed since the late 1970s, EU accession to the European Convention on Human Rights (ECHR) became a legal obligation under Article 6(2) of the Treaty of Lisbon. The purpose of the EU’s accession to the ECHR is to contribute to the creation of a single European legal space, achieving a coherent framework of human rights protection throughout Europe.

The draft Accession Agreement of the EU to the ECHR between the 47 Member States of the Council of Europe and the EU was finalised on 5 April 2013. Asked by the Commission to deliver an opinion, pursuant to Article 218(11) of the Treaty on the Functioning of the EU (TFEU), on the compatibility of the draft agreement with EU law, the European Court of Justice identified problems, and gave a negative opinion in its opinion of 18 December 2014.

Referring to Protocol No 8 relating to Article 6(2) of the Treaty on European Union (TEU), the Court recalled that the accession agreement had to fulfill certain conditions to make provision for preserving the specific characteristics of the EU and of EU law, as well as to ensure that accession does not affect EU institutions’ competences or the powers. In that context, the Court concluded that accession was liable to upset the underlying balance of the EU and undermine the autonomy of EU law.

It added that the advisory opinion mechanism foreseen by Protocol 16 to the ECHR would affect the autonomy and effectiveness of the preliminary ruling procedure provided for in the TFEU. Notably, the draft agreement excludes the possibility of bringing a matter before the Court of Justice in order for it to rule on a question of interpretation of secondary law, which adversely affects the competences of the EU and the powers of the Court.

Over the years, the Commission stated its strong commitment to the accession process and consulted with the relevant Council working party on solutions to address the various objections raised by the Court.

For the European Parliament, the principal benefit of EU accession to the ECHR lies in the possibility for individual recourse against the actions of the Union, similar to that already enjoyed against Member States’ actions. Moreover, in the Parliament’s view, accession to ECHR will constitute a further step in the process of European integration and will send a strong signal concerning the coherence between the Union and the Council of Europe’s human rights system.

The European Parliament resolution of 12 February 2019 on the implementation of the Charter of Fundamental Rights of the European Union in the EU institutional framework (2017/2089(INI)) reiterates the importance of the EU acceding to the ECHR.

On 31 October 2019, the then President and the then First Vice-President of the European Commission co-signed a letter to the Secretary General of the Council of Europe in which they declared that the EU was ready to resume negotiations. The Council of Europe and the EU have been working on the preparations for the continuation and finalisation of the negotiations.  An informal virtual meeting was held on 22 June 2020, and negotiations formally continued in Strasbourg from 29 September to 2 October 2020. On 29 September,  the Secretary General of the Council of Europe, Marija Pejčinović Burić, and the EU Commission’s Vice President for Values and Transparency, Věra Jourová, gave a joint statement to send a strong signal about the commitment of the two organisations and their member states to the fundamental rights that they cherish. The 13rd negotiation meeting took place on 10-13 May 2022. During the meeting, the Group held an exchange of views with representatives of civil society on the issues and proposals currently under discussion. The Group will hold its next meeting on 5-8 July 2022.

The 12 October Council conclusions on the application of the EU Charter of Fundamental Rights in 2016 state that the Council remains committed to the EU accession to ECHR and invited the Commission to swiftly complete its analysis of the legal issues raised by the European Court of Justice. In the 12 October 2018 Council conclusions on the application of the EU Charter of Fundamental Rights in 2017 the Council reiterated its commitment to the EU accession to the ECHR and again invited the Commission to swiftly complete its analysis of legal issues raised by the European Court of Justice. On 7 October 2019, after it received a written contribution from the Commission which addresses all the objections raised by the ECJ, the Council reaffirmed its commitment to the accession and agreed to supplementary negotiating directives. On 15 January 2020, the Ministers' Deputies approved the continuation of the ad hoc terms of reference of the Steering Committee for Human Rights (CDDH) 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 European Convention on Human Rights (ETS No. 5), including its participation in the Convention system and, in this context, to examine any related issue.

On 16 March 2022, the Committee of Ministers decided under Article 8 of the Statute of the Council of Europe that the Russian Federation would cease to be a member of the Council of Europe forthwith. As a result, the Russian Federation will no longer participate in the work of the Steering Committee for Human Rights or any of its subordinate bodies, including the CDDH ad hoc negotiation group on the accession of the EU to the ECHR. This group will henceforth continue the negotiations in a “46+1“-format.

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Author: Marie Lecerf, Members' Research Service, legislative-train@europarl.europa.eu

As of 20/05/2022.
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