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20th May 2022

Court crushes EU plan to join human rights convention

  • Judges at the EU court ruled against plans for the EU to accede to the convention of human rights (Photo: European Commission)

An opinion issued on Thursday (18 December) by the European Court of Justice (ECJ) in Luxembourg says the EU’s accession to the convention is incompatible with EU law under the terms outlined by a draft agreement.

The verdict is likely to be seen as a gain for UK-based eurosceptic parties who oppose the EU judicial structures to begin with.

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But for the European Commission and the human rights watchdog, the Council of Europe, it is a set back.

Both had drafted the accession treaty, which was then adopted by the Strasbourg-based Council in 2013.

The convention is enforced across all 47 states in the Council, including the 28 EU member states.

The negative opinion further complicates the EU’s legal obligation to join the convention as required by the 2009 Lisbon Treaty.

But the judge’s opinion does not rule out the EU’s accession to the convention itself.

“It may well be that all those [problems] can be solved by a future draft agreement,” a contact at the ECJ told this website.

Another source said that while they had expected some criticism, the amount of negativity found in the opinion had caught them by surprise.

European Commission spokesperson Margaritis Schinas refrained from making any preliminary assessments.

Instead, he told reporters in Brussels that the “commission will now analyse in depth the Court of Justice of opinion”.

The Council of Europe made similar remarks on the need to study the opinion and overcome the legal hurdles identified by the Court.

Steve Peers, a professor of EU and human rights law at the University of Essex, says the Court’s grief is rooted in five big problems.

“In short, the Court is seeking to protect the basic elements of EU law by disregarding the fundamental values upon which the Union was founded,” he notes in his blog.

The judges are unhappy with the agreement, in part, because the convention would 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," note the judges.

Another anomaly cited by the Court is that the agreement failed to take into account the expanded role of the European Court of Human Rights, for instance, when assessing inter-state dispute settlements between member states.

Such disputes are for the moment only decided by the Court of Justice.

The judges also had an issue with a so-called co-respondent system in the agreement.

The system expands the jurisdiction of the European Court of Human Rights to the EU. But the judges say this violates EU law because of certain specific extra roles required by the human rights court to carry out the tasks.

Not everyone is unhappy with the judgment.

The moderately eurosceptic ECR group has praised the Luxembourg-court’s opinion.

"I hope the irony is not lost that the ECJ is opposing the ECHR because its rulings might result in a loss of sovereignty,” said one ECR spokesperson in a statement.

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