The Court of Justice of the European Union has ruled that the Draft Agreement for the the accession of the European Union (EU) to the European Convention on Human Rights is incompatible with European Union law.
The Court ruled that the Draft Agreement was incompatible on five grounds.
The request for an Opinion, submitted by the European Commission, asked whether:
[...] the [D]raft [A]greement providing for the accession of the European Union to the Convention for Protection of Human Rights and Fundamental Freedoms[, signed in Rome on 4 November 1950 ("ECHR"),] compatible with the Treaties?
In March 2010 the European Commission recommended to the Council of Europe, authorising the opening of negotiations on the Draft Agreement. The Council adopted this recommendation in June 2010 and designated the Commission as Negotiator.
The principles that must be covered by the internal rules of the EU during negotiations in April 2012 were set out in a Supplementary Annex to the Council's Mandate according to the Annex, the internal rules cover:
[...] [one,] the representation of the EU before the E[uropean] C[our]t of H[uman] R[ights; two,] the triggering of the co-respondent mechanism before the [Court] and the coordination rules for the purpose of the conduct of the procedure before the [Court] by the respondent and the co-respondent[; three,] the selection of three candidates for the office of Judge in the [Court; four,] the prior involvement of the Court of Justice, and[; five,] the circumstances in which the EU will agree a position and those in which the Member States will remain free to speak and act as they choose, both in the [Court] and in the Committee of Ministers.
In April 2013 the Draft Agreement was agreed upon by negotiators.
First, the failure of the Draft Agreement to take account of specific characteristics of EU law is threefold. One, the Draft Agreement did not limit the possibility of EU member states having higher human rights standards than EU law. This, despite the European Court of Justice judgment that member states could not have higher standards than the Charter of Fundamental Rights of the European Union where the law has been harmonised by EU. This rule also applies to the European Convention on Human Rights. But the Draft Agreement failed to take account of this. Two, the Draft Agreement did not provide for the application of the 'mutual trust' rule in Justice and Home Affairs matters. Three, Draft Agreement also failed to rule out the possibility that when applying Protocol 16 to the European Convention on Human Rights, the national courts would ask the European Court of Human Rights to rule on EU law matters before asking the Court of Justice.
Second, the Draft Agreement failed to rule out the possible use of the European Court of Human Rights to settle disputes. This violates Article 344 of the Treaty on the Functioning of the European Union (TFEU), which gives the Court of Justice monopoly on settling inter-state disputes on EU law between EU member states.
Third, the co-respondent mechanism where both an EU member state and the EU could be party to a case at the European Court of Human Rights is incompatible with EU law on three grounds. One, it would give the European Court of Human Rights the power to interpret EU law when assessing the admissibility of requests to apply this process. Two, a judgment by the European Court of Human Rights on the joint responsibility of the EU and member states could impinge on member states reservations to the European Convention on Human Rights. Three, the EU should not have the power to allocate responsibility for any breach of the European Convention on Human Rights between the EU and member states, since only the Court of Justice can rule on EU law.
Fourth, the rule in the Draft Agreement on prior involvement of the Court of Justice before the European Court of Human Rights ruled on EU law were incompatible with EU law on two grounds. One, the rules did not reserve the power on whether the Court of Justice has already rule on a matter of the EU. Two, the rules did not permit the Court of Justice to rule on the definitive interpretation of EU law.
Fifth, the rules on the Common Foreign and Security Policy were incompatible with EU law because a non-EU court cannot be given the power of judicial review over EU "acts, actions or omissions". This, despite the Court of Justice having no jurisdiction itself on most Common Foreign and Security Policy matters.
The consequences of the Court of Justice opinion means that EU accession to the European Convention on Human Rights cannot go ahead without amending the draft Agreement. Moreover, any amendments to the draft Agreement will have to be negotiated by all 47 signatories to the Convention.
In 1996, the Court ruled that the European Community (EC) could not accede to the European Convention on Human Rights. The Court ruled that only an amendment to the Treaty could overturn the decision. In 2009, the Lisbon Treaty amended existing treaties, inserting Article 6(2):
Second, the Draft Agreement failed to rule out the possible use of the European Court of Human Rights to settle disputes. This violates Article 344 of the Treaty on the Functioning of the European Union (TFEU), which gives the Court of Justice monopoly on settling inter-state disputes on EU law between EU member states.
Third, the co-respondent mechanism where both an EU member state and the EU could be party to a case at the European Court of Human Rights is incompatible with EU law on three grounds. One, it would give the European Court of Human Rights the power to interpret EU law when assessing the admissibility of requests to apply this process. Two, a judgment by the European Court of Human Rights on the joint responsibility of the EU and member states could impinge on member states reservations to the European Convention on Human Rights. Three, the EU should not have the power to allocate responsibility for any breach of the European Convention on Human Rights between the EU and member states, since only the Court of Justice can rule on EU law.
Fourth, the rule in the Draft Agreement on prior involvement of the Court of Justice before the European Court of Human Rights ruled on EU law were incompatible with EU law on two grounds. One, the rules did not reserve the power on whether the Court of Justice has already rule on a matter of the EU. Two, the rules did not permit the Court of Justice to rule on the definitive interpretation of EU law.
Fifth, the rules on the Common Foreign and Security Policy were incompatible with EU law because a non-EU court cannot be given the power of judicial review over EU "acts, actions or omissions". This, despite the Court of Justice having no jurisdiction itself on most Common Foreign and Security Policy matters.
The consequences of the Court of Justice opinion means that EU accession to the European Convention on Human Rights cannot go ahead without amending the draft Agreement. Moreover, any amendments to the draft Agreement will have to be negotiated by all 47 signatories to the Convention.
In 1996, the Court ruled that the European Community (EC) could not accede to the European Convention on Human Rights. The Court ruled that only an amendment to the Treaty could overturn the decision. In 2009, the Lisbon Treaty amended existing treaties, inserting Article 6(2):
The Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms. Such accession shall not affect the Union's competences as defined in the Treaties.This amendment now requires the European Union to accede to the European Convention on Human Rights.
