The EU’s Accession to the ECHR: Negotiations to resume after 7 month hiatus

Since the entry into force of the Lisbon Treaty in 2009, the European Union has been obliged to accede to the European Convention on Human Rights (ECHR).¹ As a result of this obligation, negotiations with a view to drawing up an accession agreement between the Union, on the one hand, and the state parties to the ECHR, on the other, have been underway for more than a year.²

(Originally posted on the MultiRights blog 14 May 2012. Click here to view the original post.)

The Union’s accession to the ECHR is of particular interest to the MultiRights project, because it aims to streamline Europe’s multi-leveled system of human rights protection by creating formal links between the Court of Justice of the European Union (ECJ) and the European Court of Human Rights (ECtHR). In this blog post I will briefly explain the complex negotiation process, and outline the next likely steps.

Distinguishing the parties

The ECHR is an international human rights treaty with 47 state parties. Up until recently, the ECHR did not allow for international organizations to become parties to it. However, Protocol 14 to the ECHR, which entered into force in June 2010, amended its article 59(2) so as to enable the accession of the Union to the ECHR. While the Union could in theory accede unilaterally, an Accession Agreement was preferred in order to make the necessary modifications to the ECHR to accommodate for the Union’s multi-leveled legal system.

Since this Accession Agreement amends the ECHR, it will only enter into force after all 47 state parties and the Union has signed and ratified it. The Union is therefore in the peculiar situation of negotiating with 47 states – 27 of which are its own member states. From the Union’s point of view, this “mixed” composition of parties may, as will be shown below, make the negotiations much more complex than if the Union was negotiating only with states that are not EU members.

Initial negotiations under the auspices of the Council of Europe

A committee of experts sitting in private capacity was appointed to spearhead the negotiations. The committee was named the Informal Group on Accession of the European Union to the Convention (CDDH-UE), which operated under the auspices of the Council of Europe’s Steering Committee for Human Rights (CDDH). It was entrusted with the task of drafting legal instruments setting out the modalities of the accession of the Union to the ECHR, working in close co-operation with the Commission.³

On July 19, 2011 the members of the CDDH-UE agreed on a set of draft legal instruments on the accession of the Union to the ECHR.⁴ The most important of these instruments is the draft Agreement on the Accession of the European Union to the ECHR. The draft instruments were then submitted to the CDDH, for discussion at its extraordinary meeting on October 12–14, 2011.

At the extraordinary meeting many delegations “considered the draft instruments […] as an acceptable and balanced compromise”.⁵ The delegations from the 47 CoE member states also agreed on a couple of minor changes to the Explanatory Report, and two linguistic adaptations in the French text of the draft Accession Agreement.⁶

However, discussions on the substantive provisions of the Accession Agreement stalled, due to the lack of a common position among the EU member states, entailing that some delegations “were not in a position to express substantive views in the CDDH”.⁷ The CDDH nevertheless decided to transmit its report and the revised draft legal instruments to the Committee of Ministers for “consideration and further guidance”.⁸ At the time of writing the Committee of Ministers are awaiting the outcome of the internal discussions between the Union and its member states, and has therefore taken no further action on the draft.

The internal EU discussions

At this point in time it seems reasonable to ask why the Union and its 27 member states are having month-long talks about the draft Accession Agreement. At first glance, it may appear more rational to gather the representatives of all the forthcoming parties to the Accession Agreement and work out the final details. Why are the EU member states instead opting for a round of talks among themselves before they again come back to the larger negotiating table to work out a final Accession Agreement?

The answer may be found in Union law. The EU member states are obliged, under TEU article 4(3), to facilitate the achievement of the Union’s tasks and to abstain from any measure which could jeopardize the attainment of the Union’s objectives. This entails that individual EU member states cannot engage in negotiations on the ECHR without coordinating its actions with the Union and the other member states. Such coordination was apparently lacking before the CDDH meeting in October 2011. A hiatus was thus necessary in order for the Union and its member states to coordinate their positions.

The internal talks between the Union and its member states are taking place in a preparatory body of the EU Council, called the Working Party on Fundamental Rights, Citizens Rights and Free Movement of Persons (FREMP). According to the latest publicly available note from the Council Presidency dated December 6, 2011, the discussions in the FREMP have “been very intense”.⁹ Leaked working documents show that a few amendments to the draft Accession Agreement were suggested – the majority of which concern clarifications and minor adjustments.¹⁰ However, the EU member states and the non-EU states are sharply divided with regard to the participation of Union representatives in CoE organs.¹¹ But the distance between the parties does not seem so large that it would jeopardize the accession process altogether.

In 2012 there has been little to report on the negotiations. The Council Presidency has not made any new “State of Play”-notes, and there has been no new leaks. It was not possible to see any movement in the internal EU negotiations until the very end of April, when the Union’s accession to the ECHR made it to the agenda of a Council meeting.¹² According to that agenda, the Council were to have an “Exchange of views” and discuss “Certain issues”. Exactly what was discussed is unknown at the current point in time, since that part of the meeting is confidential. However, the press release after the meeting seems to indicate that a common position has been reached:

“The Council took note of the outcome of discussions on the draft accession agreement. The Presidency concluded that negotiations should resume on this basis without delay. In parallel, discussions should continue within the EU on the rules which will regulate internal procedures in relation to the accession.”¹³

As can be gleaned from the quote, the discussions on the Accession Agreement is to be resumed as soon as possible. Even though, the internal EU discussions will continue, but the focus will now be on issues that do not concern the Accession Agreement itself – such as how the procedural mechanisms set up in the Accession Agreement are to be implemented within EU law.

The final stretch

If a common positions has been reached, as the press release indicates, the forthcoming negotiations will thus in practice be conducted between the Commission, representing the EU member states and the Union, on the one hand, and the 20 state parties to the ECHR that are not EU members on the other. Those negotiations should lead to the adoption of a final Accession Agreement within a relatively short period of time.

When a final Accession Agreement is ready, the Commission will ask the ECJ to give an opinion on it.¹⁴ If the ECJ finds that the Accession Agreement is incompatible with the constitutive treaties of the Union, it has a power to reject it.¹⁵ There is thus a risk that another round of negotiations will be necessary after the ECJ has given its opinion.

Under the assumption that the final Accession Agreement does pass the scrutiny of the ECJ, the next step is signature and ratification. The Agreement will enter into force once all its 47 state parties and the Union have expressed their consent to be bound by it. There is thus a risk that one mischievous state may clog the entire accession process for years, similar to what happened with ECHR protocol 14.¹⁶

Though important steps remain before the EU can call itself a party to the ECHR, the major political decisions have already been taken. It is difficult to imagine a total breakdown of the accession process or substantial changes in the core elements of the Accession Agreement. However, the final leg may take a considerable amount of time.

---