25th Sep 2023

EU bid to join human rights convention poses tricky questions

  • The terms of the EU's accession to the convention is expected to take years to negotiate (Photo: EUobserver)

The European Union has taken the first step on the path to signing up to the European Convention on Human Rights (ECHR), a move that supporters say will mark the completion of human rights protection in the EU.

All member states have signed up to the ECHR, a 1950 international treaty guaranteeing a series of rights, including freedom of thought, speech, assembly and religion and governed by the European Court of Human Rights in Strasbourg.

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But the EU itself was only able to sign up to the charter once it acquired a legal personality, something that was realised with the coming into force of the Lisbon Treaty on 1 December last year. The Lisbon Treaty also obliges the EU to sign up to the convention.

Accession to the convention will mean that EU citizens who feel their rights have been violated by the EU or its institutions will now be able to challenge the EU before the court.

Previously, they could only challenge the behaviour of their own member state. But if they fell victim to mistreatment by an EU institution or due an EU law, the court could not reprimand the EU as it was not party to the convention.

Hungarian centre-right MEP Kinga Gal, speaking at a European Parliament hearing on the matter on Thursday (18 March), called the future change "of great legal importance in the creation of continent-wide human rights."

Professor Jose Pastor Ridruejo of Madrid university said it will be a "gigantic step forward" for human rights and a move that will give "complete legal certainty" in the area. Professor Jean-Paul Jacque, from the University of Strasbourg, said it means the "European Union will be submitting itself to external control."

But the move also poses a number of tricky questions, particularly to do with relations between the European Court of Justice (ECJ) in Luxembourg, which has the last word on interpretation of EU law, and the human rights court in Strasbourg.

The academics present at the hearing suggested the Strasbourg court be used as a court of last instance, once national courts and then the ECJ have had their say.

Court conflicts?

However, Christiaan Willem Anton Timmermans, a judge at the ECJ, pointed to the potential problem of a national court referring a case directly to the human rights court, meaning the Strasbourg court could rule on a case even though the ECJ has not yet had a say. This would effectively sideline the Luxembourg court.

A potentially much bigger issue is the fact that the EU's Luxembourg court has no jurisdiction in the realm of common foreign and security policy or over the validity or proportionality of police operations carried out by a member state.

Accession of the EU to the convention brings up the possibility of individuals having recourse to the Strasbourg court over complaints about EU military missions for example.

This raises the question of the Strasbourg court ruling where the ECJ is not allowed to rule but also the extent to which member states are liable for actions carried out in the name of the EU. This last, already the subject of Strasbourg case law, is expected to be a controversial point for the terms of the EU's accession to the convention.

Which rights?

Other potential flash points include the rights afforded by the convention as opposed to those included in the EU's very own charter of fundamental rights.

Danish hard-right MEP Morten Messerschmidt, pointing to the recent case of Danish papers publishing a cartoon depicting Mohammed, asked what happens if rights are in conflict, such as the right to free speech and the right to freedom of religion.

Meanwhile, companies subject to the EU's vigorous anti-trust law are already said to be looking to the EU's accession to the convention. Article six of the convention deals with the right to a fair trial.

"If you are affected, if you come under the jurisdiction of the European Union, if you are the addressee of a decision in the competition area ... you can bring a complaint against the union," said an EU official.

The European Commission on Wednesday drew up the negotiating mandate for accession to the convention. This now needs to be approved by all member states.

Technical questions include how to choose a judge for the EU, what the costs will be of acceding to the convention and how it should be paid for, as well as how many MEPs should be included in the assembly of the Council of Europe when it comes to voting on the EU judge.

In addition, the EU is keen to make sure it has co-defendent rights, so if a member state is challenged on EU law it is in the chamber too. Another issue to sort out is whether the EU should join the additional protocols to the convention, which further enhance rights. Not all member states are signed up to all protocols.

With all the complexities of accession plus the cumbersome ratification process, Jonas Christoffersen, a Danish human rights expert, said he "bet a bottle of champagne" that it would not occur within the next five years.

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