The Court of Justice of the European Union has ruled that the draft agreement on the accession of the European Union to the European Convention on Human Rights (ECHR) is not compatible with EU law. The ruling deals a blow to efforts to make the Union accede to the ECHR as the Lisbon Treaty requires.

The ruling was announced yesterday (18 December) by the Luxembourg-based Court of Justice of the European Union (CJEU). Asked to comment, the Commission said it would first need to study its legal arguments.

All 28 members of the European Union (EU) are also members of the 47-nation Council of Europe (CoE) and as such are bound by the CoE’s European Convention on Human Rights

The Lisbon Treaty committed the EU as a whole to signing up to the convention, alongside its 28 member states and 19 other European countries – including Russia, Turkey and Ukraine, for example – which are not members of the EU

Currently, individuals cannot challenge EU laws and practices at the European Court of Human Rights in the same way that they can challenge national laws and practices

However, individual EU member states can be – and have been – held accountable in Strasbourg for putting into practice decisions agreed at the EU level

The Lisbon Treaty also provided the EU with its own Charter of Fundamental Rights, overseen by the CJEU, which is now dealing with a growing number of cases relating to fundamental rights in EU countries

The EU’s accession to the ECHR is expected to address these issues, creating a single, comprehensive and coherent legal framework for protecting human rights across the continent.

Following almost three years of technical discussions, a draft agreement was finalised by negotiators from the 47 Council of Europe countries and the EU Commission in April 2013.

In July 2013, the European Commission asked the CJEU for an opinion as to whether the draft agreement is compatible with the EU treaties.

Following a hearing in May 2014, this opinion was delivered yesterday.

The Court observes that first of all that, as a result of accession of the EU to the ECHR, the latter, like any other international agreement concluded by the EU, would be binding upon the institutions of the EU and on its member states, and would therefore form an integral part of EU law.

External control

In that case, the EU would be subject to external control to ensure the observance of the rights and freedoms provided for by the ECHR. The EU and its institutions would thus be subject to the control mechanisms provided for by the ECHR and, in particular, to the decisions and judgments of the European Court of Human Rights (‘the ECtHR’, which is not a European Union institution).

The Court notes that it is admittedly inherent in the very concept of external control that, on the one hand, the interpretation of the ECHR provided by the ECtHR would be binding on the EU and all its institutions and that, on the other, the interpretation by the Court of Justice of a right recognised by the ECHR would not be binding on the ECtHR.

However, it states that that cannot be the case as regards the interpretation of EU law, including the Charter, provided by the Court itself.

Convention should be coordinated with Charter

The Court also points out in particular that, in so far as the ECHR gives the Contracting Parties the power to lay down higher standards of protection than those guaranteed by the ECHR, the ECHR should be coordinated with the Charter.

Where the rights recognised by the Charter correspond to those guaranteed by the ECHR, the power granted to Member States by the ECHR must be limited to that which is necessary to ensure that the level of protection provided for by the Charter and the primacy, unity and effectiveness of EU law are not compromised. The Court finds that there is no provision in the draft agreement to ensure such coordination.

Undermining autonomy of EU law

The Court also considers that the approach adopted in the draft agreement, which is to treat the EU as a State and to give it a role identical in every respect to that of any other Contracting Party, specifically disregards the intrinsic nature of the EU.

The ECHR would therefore require each member state to check that the other member states had observed fundamental rights, even though EU law imposes an obligation of mutual trust between those member states. In those circumstances, accession is liable to upset the underlying balance of the EU and undermine the autonomy of EU law. However, the agreement envisaged contains no provision to prevent such a development, the Court states.

Affecting the autonomy of the preliminary ruling procedure

The Court notes that Protocol No 16 to the ECHR, signed on 2 October 2013, permits the highest courts and tribunals of the member states to request the ECtHR to give advisory opinions on questions relating to the interpretation or application of the rights and freedoms guaranteed by the ECHR. Given that, in the event of accession, the ECHR would form an integral part of EU law, the mechanism established by that protocol could affect the autonomy and effectiveness of the preliminary ruling procedure provided for by the FEU Treaty, notably where rights guaranteed by the Charter correspond to rights secured by the ECHR, the judges ruled.

The delay of the accession of the EU to ECHR is seen as good news in London, where the Conservative Party of David Cameron is doing its utmost so that UK will be exempt from judgments of the ECtHR.