ECHR adoption draft incompatible with EU law, Court of Justice rules
The draft agreement on the accession of the European Union to the European Convention on Human Rights is not compatible with certain aspects of the European treaties, the EU Court of Justice ruled today.
A ruling had been requested by the European Commission following the reaching of agreement in April 2013 on terms for the accession of the EU to the Human Rights Convention.
The EU already has its own Charter of Fundamental Rights, dating from 2000, and the 2009 Treaty of Lisbon specified that the EU would accede to the ECHR, but that such accession would not affect the EU's competences as defined in the treaties.
Special provision had to be made for the EU to accede to the Convention, because it had previously only been possible for states to do so, and the EU is, under international law, precluded by its very nature from being considered a state.
In its judgment the court said that in order to ensure that the specific characteristics and the autonomy of the EU legal order were preserved, the treaties had established a judicial system intended to ensure consistency and uniformity in the interpretation of EU law. This had as its keystone the preliminary ruling procedure provided for in article 267 on the Treaty on Furtherance of the European Union (TFEU).
Fundamental rights, in particular as recognised by the Charter, had to be interpreted and applied within the EU in accordance with its constitutional framework. And while fundamental rights as guaranteed by the Convention constituted general principles of the EU's law, accession would result on them being binding on the EU institutions and member states.
The issues the court had with the draft agreement were that:
- there was no provision to ensure coordination between the Convention and the Charter if parties to the Convention chose to lay down higher standards of protection than were guaranteed by the Convention;
- the Convention requires a member state to check that another member state has observed fundamental rights, whereas EU law imposes an obligation of mutual trust between member states, and accession would be liable to upset the underlying balance of the EU and undermine the autonomy of EU law;
- by failing to make any provision in respect of the relationship between the mechanism established by Protocol no 16 to the Convention for requesting an advisory opinion from the European Court of Human Rights, and the preliminary ruling procedure provided for in article 267 TFEU, the agreement was liable adversely to affect the autonomy and effectiveness of the latter procedure;
- the possibility that the EU or a member state might submit an applicatin to the Human Rights Court concerning an alleged violation of the Convention by a member state or the EU, undermined article 344 TFEU, which provided for resolution of disputes under the treaties. Only the express exclusion of the Human Rights Court's jurisdiction in such disputes in relation to the application of the Convention within the scope of EU law would be compatible with article 344;
- certain aspects providing for review by the Human Rights Court would be liable to interfere with the division of powers between the EU and its member states;
- regarding the procedure for the prior involvement of the Court of Justice, only competent EU institutions, and not the Human Rights Court, should be able to decide whether the EU court had already given a ruling on the same question of law as that at issue in the proceedings before the Human Rights Court;
- situations could arise in which the judicial review of acts, actions or omissions on the part of the EU could be effectively entrusted exclusively to a non-EU body, albeit that any such review would be limited to compliance with the rights guaranteed by the Convention.
"It must be held that the accession of the EU to the ECHR as envisaged by the draft agreement is liable adversely to affect the specific characteristics of EU law and its autonomy", the court said.