Some progress during the 7th meeting of the 47+1 group

A couple of months ago, the negotiations on the EU’s accession to the ECHR resumed, with what was termed the sixth meeting of the 47+1 group – the ad hoc negotiation group involving all 47 Council of Europe and the EU. From 24–26 November, the 47+1 group held their 7th meeting, and the last of 2020. Some progress was made, but from reading the report it is becoming increasingly clear that no immediate breakthroughs are in sight.

In this post I will, using publicly available sources (primarily the meeting report), briefly summarize and take stock of the progress made. I begin by listing the issues that were not dealt with at all during the 7th meeting, and then turn to the issues there were the subject of negotiations at the 7th meeting. Finally, I will say a couple of words about other business at the 7th meeting, notably the exchange of views with representatives of civil society.

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The negotiations on the EU’s accession to the ECHR have resumed

From 29 September to 1 October 2020 the so-called 47+1 Group, which consists of representatives of all Council of Europe Member States and the European Union, held their first formal negotiation meeting on the EU’s accession to the ECHR since the 2013 Draft Accession Agreement (DAA) was rejected by the Court of Justice of the European Union (CJEU) in Opinion 2/13. When it was handed down back in December 2014, I characterized Opinion 2/13 as a “direct and unequivocal attack on the accession agreement” by the CJEU. In the same post, I also predicted that it would be “very difficult to satisfy the CJEU’s objections by way of amending the accession [instruments]”.

The fact that it has taken almost six years for the negotiations to properly restart is a testament to these difficulties. At the same time, the resumption of the accession negotiations signals that the parties indeed believe that it is possible to satisfy or circumvent the CJEU’s objections in Opinion 2/13 – or, perhaps, that some of the objections no longer hold water.

The meeting report from the first renegotiation meeting – or the sixth negotiating meeting in CoE parlance, continuing the numbering from the previous round – has just been made available on the CoE website for the accession negotiations. Another key document is the “Paper by the Chair to steer the discussion at the 6th meeting of the CDDH ad hoc group (47+1)“, which was drafted to structure the negotiations. Finally, the EU Commission’s negotiating mandate – a heavily guarded document in the first round of negotiations – was leaked almost simultaneously with its approval in October 2019.

In this blog post, I analyze the meeting report, in light of the Chair’s paper, and take stock of the progress made so far.

A glimpse of the 6th 47+1 negotiation meeting
*(Photo credit: Council of Europe)*

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The Bosphorus presumption is still alive and kicking: the case of Avotiņš v. Latvia

Yesterday, 23 May 2016, the Grand Chamber of the European Court of Human Rights (ECtHR) delivered its judgment in the case of Avotiņš v. Latvia. This seems to be the ECtHR’s first detailed appraisal of the so-called Bosphorus presumption after the Court of Justice of the European Union (CJEU) in Opinion 2/13 rejected a draft agreement providing for the accession of the EU to the European Convention of Human Rights (ECHR). It also provides a first glimpse of how the ECtHR views the EU law principle of mutual trust, which has become particularly dear to the CJEU over the last couple of years.

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New paper: The Reinterpretation of TFEU Article 344 in Opinion 2/13 and Its Potential Consequences

My first proper journal article was just published in the German Law Journal, volume 16 (2015) no. 1. Here is the abstract:

On 18 December 2014 the Court of Justice of the European Union (CJEU) delivered Opinion 2/13, and stunned the legal world by declaring that the Draft Agreement on the Accession of the EU to the European Convention on Human Rights was incompatible with the constituent treaties of the Union. In this contribution note I will focus on only one aspect of Opinion 2/13: the CJEU’s interpretation and application of the TFEU article 344. Specifically, I will compare the approach taken in Opinion 2/13 with that of the CJEU’s earlier case-law. I will argue that the reasoning and conclusion concerning TFEU article 344 in Opinion 2/13 is clearly at odds with this earlier case-law, notably the leading MOX Plant case. I will also demonstrate how the approach to the issue in Opinion 2/13 – if it indeed reflects lex lata – seriously affects numerous treaties that have already been concluded by the Union.

German Law Journal is an online open access journal, so you can download the full contribution by following this link.

Opinion 2/13: A bag of coal from the CJEU

Just in time for Christmas, on 18 December 2014, the Court of Justice of the European Union (CJEU) handed down its Opinion 2/13 on the Union’s planned accession to the European Convention on Human Rights (ECHR). To the surprise of most, the CJEU found the draft agreement on the accession of the Union to the ECHR incompatible with the Union’s primary (read: constitutional) law.

Not only did the CJEU find the accession agreement incompatible with the Union’s constituent treaties. Its Opinion reads like a direct and unequivocal attack on the accession agreement and, as I will come back to, it seems to be very difficult to satisfy the CJEU’s objections by way of amending the accession agreement. Instead of the expected Christmas present of a signable accession agreement, the Court brought the negotiators a bag of coal.

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Some thoughts on the ECJ hearing on the Draft EU-ECHR Accession Agreement (Part 2 of 2)

I was in Luxembourg 5-6 May 2014, attending the hearing at the European Court of Justice concerning the Draft Agreement for the Accession of the European Union to the European Convention on Human Rights. In these two posts (click here for part 1) I summarize the main arguments presented at the hearing, and provide some initial analysis and thoughts. Finally, I would not be a lawyer if I did not point out that some caveats apply: I am writing based on my own notes and recollection, and thus there might be inaccuracies, omissions and misattributions. If you come across any, feel free to point them out in the comments section below. I would also greatly appreciate any other comments or thoughts you might have in relation to this case.

The second and final day of oral argument at the ECJ in the case concerning the validity of the Draft Agreement for the Accession of the EU to the ECHR (hereinafter: the DAA) focused on the questions put to the parties by the judges yesterday. Those questions are summarized at the end of yesterday’s blog post. Moreover, some of the judges, as well as the Advocate General, asked further questions towards the end of the hearing.

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Some thoughts on the ECJ hearing on the Draft EU-ECHR accession agreement (Part 1 of 2)

I was in Luxembourg 5-6 May 2014, attending the hearing at the European Court of Justice concerning the Draft Agreement for the Accession of the European Union to the European Convention on Human Rights. In these two posts (click here for part 2) I summarize the main arguments presented at the hearing, and provide some initial analysis and thoughts. Finally, I would not be a lawyer if I did not point out that some caveats apply: I am writing based on my own notes and recollection, and thus there might be inaccuracies, omissions and misattributions. If you come across any, feel free to point them out in the comments section below. I would also greatly appreciate any other comments or thoughts you might have in relation to this case.

Monday May 5th was the opening day for the case concerning the Draft Agreement for the Accession of the EU to the European Convention of Human Rights (hereinafter: the DAA). The case is brought under the procedure provided for in TFEU article 218(11) by the Commission, which is asking the European Court of Justice (ECJ) the question of whether the DAA is compatible with the constituent treaties of the European Union. Much could be (and has been) written about this question, this case, and the spectacle that is an ECJ hearing before the full court. In these couple of posts I will, however, focus on the submissions of the parties. I will give you what I perceived as the highlights of the hearing, and provide some initial commentary.
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Draft EU-ECHR Accession Agreement finalized

As reported by news agencies just before the weekend, the European Union and the 47 member states of the Council of Europe has just agreed on draft legal instruments that enable the EU’s accession to the European Convention on Human Rights – after almost three years of negotiations. Antonie Buyse over at the ECHRblog has written a good and concise post on the topic already, which I recommend that anyone with an interest in the process should read.

While it was common knowledge that the negotiations were on the final stretch, at least I would not have expected that the final instruments would be ready before at least the next meeting of the delegations. That the delegations were able to solve all the outstanding issues this quickly must be seen as a positive sign, and suggests that the remaining obstacles will not render this agreement moot.

As Antonie Buyse mentioned in the above-mentioned post at ECHRblog, three main hurdles remain. First, the European Court of Justice (ECJ) will be asked to give its opinion on whether the draft instruments are compatible with EU law. If the ECJ finds that the draft Accession Agreement is incompatible with EU law, it has the power under TFEU article 218 (11) to forbid the EU institutions and the EU member states from entering into the agreement. However, most experts consider it unlikely that the ECJ will reject the Accession Agreement.

Secondly, a formal decision to sign the instruments and accede to the ECHR must be made by the Council of the European Union, after obtaining consent from the European Parliament, see TFEU article 218 (6)(a)(ii). Since the Council consists of 27 of the states that participated in the drafting of the Accession Agreement, there seems to be little risk of them blocking a decision. The European Parliament is also generally in favor of acceding to the ECHR. It is thus difficult to see that they would try and block the process.

Thirdly, the signature and ratification by all 47 member states of the Council of Europe + the EU itself is needed before the Accession Agreement enters into force. 27 of these 47 states are EU members, and will be bound to sign and ratify the agreement upon the above-mentioned decision in the EU Council. The EU will also be bound to sign according to the same decision. As for the 20 remaining CoE states it will be more interesting to see whether they will cooperate, whether they intend to block the process, or even block it. Russia did, for instance, refuse to ratify protocol 14 to the ECHR for years and years.

Only after going through all these loops, the Accession Agreement will enter into force, and from that day the EU will formally become the 48th party to the European Convention on Human Rights.

The negotiations on the European Union’s accession to the ECHR have resumed

A couple of weeks ago, between June 19 and 22, the Council of Europe’s Steering Committee for Human Rights (french acronym: CDDH) held its 75^th meeting. Two topics of particular interest for the MultiRights project were key points on the agenda: the follow-up of the Brighton declaration, and the European Union’s accession to the ECHR. As the title already suggests, this blog post will deal with only the fact that negotiations on the latter has in fact restarted.

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European Parliamentarians welcomes the EU’s accession to the ECHR

(Originally posted on the MultiRights blog 21 June 2012. Click here to view the original post.)

As noted by Antoine Buyse over at the ECHR blog, the parliamentarians of Europe recently welcomed the decision by the Council of Europe’s Committee of Ministers¹ to resume the negotiations on the European Union’s accession to the ECHR. The most interesting parts of the press release from the joint informal body² of members of the European Parliament and the Parliamentary Assembly of the Council of Europe (PACE) reads as follows:³

“A joint informal body of members of the European Parliament and Council of Europe parliamentarians has welcomed the prospect of talks resuming on EU accession to the European Convention on Human Rights (ECHR).

[…]

The two co-chairs of the Joint Informal Body, Pietro Marcenaro and Carlo Casini, said it was “of the utmost importance” that these negotiations reach a speedy conclusion and that the momentum towards an agreement is not lost.

‘EU accession to the ECHR is crucial with a view to securing a common space for human rights protection across the European continent,’ they said. ‘It is thus essential that the modalities of such accession are completed at a political level as rapidly as possible, and that all outstanding questions are settled.’”

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