Why the EU should accede to the ECHR

The EU Charter and the European Convention

Throughout the drafting of the EU Charter on Fundamental Rights, reference was made to the need, on the one hand, to have harmony with the European Convention on Human Rights and, on the other hand, to formulate the rights concerned in a way, which was more understandable and accessible to the ordinary citizen, and not simply to copy the wording used in the Convention. It is true that the rights enshrined in the Convention were agreed over 50 years ago. But by deliberately adopting an open-ended approach to interpreting the text, the European Court of Human Rights has managed to keep its standards in line with constantly changing social, economic and cultural conditions, and also ethical perceptions, in the contracting States.

Thus the Court has repeatedly used its individual judgments to clarify the scope and significance of the rights enshrined in the Convention. In the case of Ireland v. the United Kingdom, for instance, it stated that its "judgments in fact serve not only to decide those cases brought before the Court but, more generally, to elucidate, safeguard and develop the rules instituted by the Convention, thereby contributing to the observance by the States of the engagements undertaken by them as Contracting States".

One of the purposes of the general provisions of the Charter was to make sure that the rights defined in the Charter would not be less protective than those enshrined in the Convention. In Article 52, paragraph 3, of the Charter it is stipulated that the meaning and the scope of rights contained in the Charter, which correspond to rights guaranteed by the Human Rights Convention, shall be the same as those laid down by the said Convention. It was initially intended to include the additional words "as interpreted by the European Court of Human Rights". This did not succeed in the end but a reference to the case law of the Courts, both the Human Rights Court and the Court of Justice, was included in the Preamble.

EU Accession to the ECHR

The best means of achieving the necessary coherence between the European Convention on Human Rights and Community law would be if the European Communities or the European Union acceded to the former. This has repeatedly been advocated, not only by the Council of Europe's Secretary General and Parliamentary Assembly, but also by the European Commission and the European Parliament.

Accession to the ECHR should not be seen as an alternative to the European Union Charter, but as a complementary step. In view of the progress of integration within the European Union, it would seem appropriate for the European Union to have a written bill of rights, like most of its member States. The arguments used in the past to support accession have gained added weight through the extension of the European Union's powers in the Treaties of Amsterdam and Nice. Accession would improve the protection of citizens' fundamental rights and lead to a coherent system for human rights protection in Europe.

After all, the credibility of the European Union's human rights policy is at stake too. There is a growing contradiction between the human rights commitments demanded from non-European Union States, for instance in connection with development aid and association agreements, and the lack of any external scrutiny whatsoever of the Union's own actions. Does it really make sense to make ratification of the European Convention on Human Rights a condition for European Union membership, when the European Union itself and its legislation are wholly exempt from supervision by the Convention bodies?

Since the European Communities are not Parties to the European Convention on Human Rights, Europeans have at present no possibility of bringing complaints against the European Union institutions directly before the European Court of Human Rights. Following the adoption of a European Union Charter of Fundamental Rights, it seems increasingly anachronistic that the European Union should be the only "legal space" left in Europe which is not subject to external scrutiny by the Strasbourg Court. While all national laws, regulations, court judgments and other measures fall within that court's jurisdiction, the same does not apply to European Union legal acts.

There have been two major objections to accession, apart from the general attitude that it entails a complicated process which, given the existing situation, is not really necessary. These objections relate to the autonomy of the European Union's legal system and the problem of subordination of the Court of Justice of the European Communities to the European Court of Human Rights.

The following remarks try to answer them.

Any scheme for integration of the European Union into the European Convention on Human Rights system must allow for the autonomy of the Community legal system and the special status of the Court of Justice. Under Article 220 of the European Community Treaty (ex Article 164), the Court of Justice of the European Communities has the last word on the interpretation of all Community law. But is it really appropriate to talk of autonomy when the protection of fundamental and human rights is the issue? These rights are not merely another area into which Community competence will extend.

The idea of human rights is based on universal values and, in Europe, that idea has found expression in the European Convention on Human Rights and in the setting-up of the European Court of Human Rights as an independent international supervisory body. When it comes to protecting fundamental and human rights, the European Convention on Human Rights and Community law is based on the same values and principles. In other words, accession would in no way mean that the European Union was being incorporated into a legal order foreign to its nature. Instead, it would simply be recognising the international monitoring system, which applies to all its member States. Those member States have all accepted supervision by the European Court of Human Rights, and the European Union itself should now do the same.

In the debate on European Union accession to the European Convention on Human Rights, it has sometimes been suggested that setting up a sequence of courts from the Court of Justice of the European Communities to the European Court of Human Rights would leave the Court of Justice subordinate to a Council of Europe body. This overlooks the fact that the European Court of Human Rights would by no means review all the Court of Justice's judgments. Its jurisdiction would be limited to cases raising issues involving the protection of fundamental and human rights under the European Convention on Human Rights. These constitute only a small percentage of the cases brought before the Court of Justice. Moreover, the subsidiarity principle, which governs the Strasbourg system's relationship with national authorities (and which the Strasbourg Court has repeatedly emphasised) would also apply. Even after accession, the European Union institutions, including the Court of Justice and the Court of First Instance, would be primarily responsible for ensuring that the rights enshrined in the Convention were respected.

Supervision by the European Court of Human Rights is subsidiary in character - a fact reflected, in particular, in the recognition of national margins of appreciation. The issue here is not subordination or primacy of courts, but the taking of final decisions on alleged violations of fundamental rights by a uniform, specialised, pan-European body, with power merely to verify whether Community law and Community measures are compatible with fundamental rights. The Strasbourg Court is in no sense a higher court than the Supreme Courts or the Constitutional Courts of our countries. It is simply a "more specialised" court, responsible under the European Convention on Human Rights for "[ensuring] the observance of the engagements undertaken by the High Contracting Parties in the Convention and the Protocols thereto" (Article 19 ECHR).

If the European Union acceded to the European Convention on Human Rights, the tasks of the Luxembourg and Strasbourg Courts would be complementary. The Court of Justice of the European Communities would continue to take the final decisions on all questions of Community law. If the Strasbourg Court found incompatibilities between the Convention and European Community or European Union law, the relevant European Union institutions would then be responsible for taking the action needed to bring the corresponding regulations, or their application in specific cases, into line with the Convention's requirements. Like other Parties, the European Union institutions would, under Article 46 paragraph 1 of the European Convention on Human Rights, have a measure of discretion in executing the Strasbourg Court's judgments. In other words, external scrutiny in the field of fundamental and human rights in no way conflicts with the Court of Justice's role as the court of last instance for the interpretation of Community law.

How accession can be achieved

The accession of the Union or at least the Community(ies) would be a major contribution to the establishment of a coherent human rights protection system in Europe. It would confirm the European Union's standing as a "Community based on the rule of law", and legal certainty would benefit if the actions and decisions of the European Union institutions were subjected to the same external scrutiny as those of its member States. The autonomy and authority of the two courts would also be strengthened if each had the final say in its own area of jurisdiction.

It would thus be extremely useful, in practical terms, to start thinking now about the arrangements, which should apply in the event of accession. The time factor must not be underestimated here. Negotiating a protocol and getting it adopted and ratified by all the Parties to the Convention will take some time. It would therefore be a mistake to wait for the European Union to conclude its opinion-forming process before going into action at the Council of Europe.

The decision on accession is, of course, a matter for the member States of the European Union alone. However, the implications of that decision directly affect the interests of all the Council of Europe member States, which are the joint guarantors of the Convention system. This is why the Council must strike while the iron is hot and make active preparations for accession. It is a very encouraging sign that the Committee of Ministers instructed the Steering Committee for Human Rights on 28 March 2001 "to carry out a study of the legal and technical issues that would have to be addressed by the Council of Europe in the event of possible accession by the European Communities/European Union to the European Convention on Human Rights, as well as of the other means to avoid any contradiction between the legal system of the European Communities/Union and the system of the European Convention on Human Rights." An expert working group held a first meeting from 30 January to 1 February 2002 in a very constructive climate. The questions they address include

• points on which an amendment of the ECHR would probably be required, e.g. the closed nature of the ECHR as a Council of Europe Convention (Art.59), the reference to "State" or "States" in the Convention, the supervision of judgments through the Committee of Ministers;
• points on which an amendment might not be necessary, e.g. the terminology used in the restriction clauses, financial contributions, amicus curiae participation of the EC/EU, the question of inter-State complaints; and finally
• other questions, e.g. status and participation in the Court of the judge elected in respect of the EC/EU, modalities of entry into force.

The Steering Committee for Human Rights hopes to finalise its report in June 2002.

The House of Lords Select Committee on the European Union, reporting on the European Union Charter of Fundamental Rights in May 2000, came to the following conclusions at the end of their important Report:

• "While skilful drafting might side-step questions of potential conflict with the ECHR and European Court of Human Rights, a non-binding Charter would not prevent alternative rights or interpretations of ECHR rights being adopted by the Community courts. Accession to the ECHR remains the crucial step required if the gap is to be closed. Accession of the EU to the ECHR, enabling the Strasbourg Court to act as an external final authority in the field of human rights, would go a long way in guaranteeing a firm and consistent foundation for fundamental rights in the Union. It would secure the ECHR as the common code for Europe. The question of accession by the Union to the ECHR should be on the agenda of the IGC"(para. 154).

In its Report the Select Committee also rightly said that legal solutions to all problems involved can be found - provided the political will to find them is present.

The Finnish authorities came down squarely on the side of finding this political will when they proposed - like the Select Committee of the House of Lords, and I quote - "that the issue of the accession by the European Community to the European Convention for the Protection of Human Rights and Fundamental Freedoms be discussed anew in the intergovernmental Conference in 2004".

I fully endorse the arguments put forward by Finland and would like to encourage the Finnish authorities to persist in their efforts. The proposal for a concrete modification of Article 303 of the Treaty on the European Community in order to allow the Community to accede to the ECHR demonstrates the feasibility of this procedure. All that is now required is the political will to put it into effect.

Hans-Christian Krüger is Deputy Secretary General of the Council of Europe