Last piece of the jigsaw

A major step in the development of human rights in Europe took place last month with the accession of the European Union to the European Convention on Human Rights. Discussed since the late 1970s, accession became a legal obligation under the Treaty of Lisbon, which entered into force on 1 December 2009. Negotiations began in July 2010 and have taken until now to reach a conclusion.

The accession will strengthen the protection of human rights in Europe, by submitting the EU’s legal system to independent external control and by giving individual citizens the same protection in relation to acts of the EU as they have in relation to its member states.

Whereas all EU member states are also parties to the ECHR, the EU itself is not, and the European Court of Human Rights in Strasbourg has accepted that it cannot control acts or omissions emanating from institutions of the EU. But an EU member state remains subject to the jurisdiction of the Human Rights Court even when carrying out an obligation in relation to the EU in respect of which it has no choice. And although the EU is itself founded on respect for fundamental rights, this potential for conflict remains.

The accession will strengthen the protection of human rights in Europe

This was seen for the first time in an actual decision, in the case Michaud v France in December 2012, which concerned the French money laundering regulations, albeit it was the implementation in French law of an EU directive that was the subject of challenge.

The EU not being a state and therefore being unable to join the Council of Europe directly, it was decided to proceed by way of accession treaty, amending the Convention and making the EU a party to it.

Under the accession agreement, the EU will be able to become a co-respondent to proceedings brought in the Human Rights Court against one of its member states, and to be sued directly, including by a non-EU state. If proceedings are taken against the EU or one of its organs, an EU member state can elect to enter as a co-respondent. Judgments will be binding against all respondents.

Court v Court

Another difficulty for the negotiators was how to demarcate the respective roles of the Court of Justice of the European Union, which has exclusive competence as interpreter of European Union law, and the European Court of Human Rights, which has equivalent status in relation to the ECHR.

In order to give the Court of Justice a due say in matters, any proceedings before the Strasbourg court involving the EU must first be referred to the Court of Justice for its opinion. The Strasbourg court will then rule whether the Convention has been breached, finding the opinion given either correct or incorrect as an interpretation of the Convention. The EU will be able to nominate a judge to sit on the Human Rights Court alongside the judges of the Council of Europe member states. It will also have a voting delegation to the Council of Europe.

It is thought that the risk of conflicting interpretations of the Convention ought to be lower under this procedure than at present.

No way out?

Despite the conclusion of the treaty, its entry into force remains some way off. This being an international agreement between the EU and others, the Court of Justice has to be asked for its opinion. The agreement then requires the unanimous approval of the state representatives on the EU Council (the negotiations were carried out by the Commission). The Human Rights Court must similarly consider the text, prior to its ratification by the state parties to the Council of Europe.

Nevertheless Thorbjørn Jagland, the Secretary General of the Council of Europe, welcomed the agreement as a decisive step. “It will contribute to the creation of a single European legal space, putting in place the missing link in the European system of fundamental rights protection,” he said.

It might be thought also that the agreement renders less plausible the suggestions from the Conservative side of the coalition Government that the UK might withdraw from the Human Rights Convention while still remaining a member of the EU. There are, of course, member states of the Council of Europe that are not part of the EU, but there is no recognition of the possibility of the converse position.

But in countries such as the UK, with a level of resistance to the idea of law being imposed from elsewhere, the involvement of two European-based courts in the same proceedings, ruling on issues of human rights, may itself serve to raise the level of controversy.