Pavone on the EU’s accession to the ECHR

With the adoption of the Lisbon Treaty the 27 EU member states took measures to unify the two separate regimes protecting human rights in Europe. Article 6 TEU provides that “the Union shall accede to the European Convention of Human Rights and Fundamental Freedoms”, which consequently means that both the ECJ and ECtHR, will share jurisdiction over the Convention. As a result of the accession to the Convention, the Union is going to be treated like the other contracting states, and the judgements of the ECJ will consequently be subjected to review by the ECtHR. This accession will thus provide an impetus for interpretational coverage between the two courts and also the benefit of external review of the ECJ’s decisions. While it could be argued that this is a necessary step, Tommaso Pavone, the author of the paper “The Past and Future Relationship of the European Court of Justice and the European Court of Human Rights: A Functional Analysis” (published in May on the SSRN website)argues that the significance of these reforms is likely to be more symbolic than substantive.

In the aftermath of World War II two different regimes for the protection of human rights emerged in Europe. One supervised by the Council of Europe, i.e. the European Court of Human Rights (ECtHR) is dealing with democracy, human rights and the rule of law, and the other one, the European Court of Justice (ECJ), an institution of the European Union mostly deals with economic integration. So, consequently even though these two courts, the ECJ and the ECtHR, jurisdiction overlaps they have jurisdiction over different human rights instruments. This can be problematic as it creates two separate bodies of law that are subjecting the European countries to dual treaty obligations, due to the differences in the functions and mandates of the two courts problems with the uniform interpretation of the Treaty provisions may also occur.

Pavone assertion that the EU’s accession to the ECHR is merely a symbolic act is understandable. The EU has claimed jurisdiction over the ECHR since the Nold case in 1974, and the accession does not broaden the substantive jurisdiction of the ECJ. It only certifies the Court’s holding in the aforementioned case by rendering the jurisdictional expansion official. Due to the principle of subsidiarity, the EU’s accession will furthermore not provide the opportunity for individuals to sidestep the ECJ and seek remedy directly in the ECtHR and if one interprets Article 344 of the TFEU and Article 33 ECHR, it seems evident that the ECJ will have exclusive jurisdiction over inter-state disputes and that its judgments in these disputes will remain final and the ECtHR’s jurisdiction will be excluded.

In his paper Pavone also asserted that even before the Lisbon Treaty entered into force in 2009, the legal order was “an extremely functional institutional and legal system that did provide for the uniform development of European human rights law” (at p. 3), as the primary function of each court was different. While the ECJ is an integrative agent, the ECtHR is to seek balance between a minimal standard of human rights protections and the diverse customs and practices that add texture to the European social landscape (at p. 8-9). Hence, while the ECJ with its predominantly economic caseload issues expansive and integrative rulings without provoking much national political resistance, the ECtHR, with its exclusive focus on human rights on the other hand tackles the more politically charged questions of human rights protection.

The jurisdiction issue began to be redirected and that is because human rights issue is beyond the rights themselves. It is no longer a subject that determines jurisdiction. On the contrary, now it has been used as label marketing to legitimate policies and political actions. The struggle between the courts is much more political than a matter of jurisdiction or the right itself. The Bosphorus v. Ireland case, in which the ECtHR had to decide whether Ireland could be held responsible for a violation of ECHR when incorporating an EU regulation, showed exactly this when the ECtHR, in order to avoid that its judgment could be reviewed by the ECJ in its judicial review power, held that “action taken in compliance with such legal obligations is justified as long as the relevant organization is considered to protect fundamental rights [] in a manner which can be considered at least equivalent to that for which the Convention provides […] If such equivalent protection is considered to be provided by organisation, the presumption will be that a State has not departed from requirements of the Convention”.The decision in this case, which is a mix of a legal and political matter, shows a degree of comity towards the ECJ.

Pavone also asserted that before the Lisbon Treaty came into force, private litigants had the opportunity of forum-shopping, i.e. the possibility to have their case heard in the court which is most likely to issue a favorable decision. As a counter-argument to EU accession to the ECHR, Pavone furthermore stresses that both the ECtHR and the ECJ developed customary practices as a way to ensure inter-court comity as well as interpretational convergence, which contributed to the creation of a uniform body of European human rights law. The author furthermore points out that to actually subsume the task of promoting European integration with that of protecting fundamental rights within a single court would have compromised the court’s ability to fulfill either of the tasks. Hence, the endeavor to promote market integration is a completely different task from protecting fundamental rights.

However, after considering the main purpose of EU accession to the ECHR, i.e. to strengthen the protection of fundamental rights, it seems to be plausible and positive that this accession is taking place. Hence, it not only strengthens the protection of fundamental rights in Europe but also shifts the mere economic orientation of the EU to include a more balanced perspective. It can furthermore be argued that since the ECJ has little experience in dealing with cases concerning human rights violations, the ECJ would gain much by relying on the expertise of the ECtHR, which the ECJ already also does and vice versa. However, even if the ECJ and the ECtHR already increasingly refer to each other’s case law and this customary practice ensures that a uniform human rights standard is created in Europe through “interpretational parallelism”, as Pavone argues, it would better if a single regime dealing with human rights would be created. Hence, it would avoid potential jurisdictional conflicts and also foster inter-court comity to an even larger extent.

Mathieu Delsol, Marijela Kokalovic, Airton Valente, and Samiya Warsame


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Örebro Universitet (Sweden)
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5 Responses to Pavone on the EU’s accession to the ECHR

  1. LC says:

    The EU law has known significant changes since the entry into force of the Treaty of Lisbon on 1 December 2009. New skills have been given to the Court that has been strengthened. Concerning relations with the Council of Europe, the Treaty now provides that the Union shall accede to the ECHR without affecting the Union’s competences as defined by the Treaties or the powers of its institutions (Art. 6 § 2 TEU).
    The EU’s accession to the European Convention of Human Rights is a problematic issue of consistency of jurisprudence of both courts. This raises the question of how the judicial cooperation will be organized. The consistency between the two courts’ case-law is already a reality. In recent years the ECHR and the ECJ are working towards a convergence. On this point, the treaties are silent and do not address the coordination of two courts.
    The side of the ECHR, it is explained by the fact that the Convention system is difficult to reform because of its rigidity. For its part, the Union system is considered like protective enough. Since the origins, both courts have continued to work to build bridges between the legal systems they represent. The side of the ECJ, it has a remarkable evolution to human rights through the development of treaties. These are the treaties that favored the reference to the ECHR and the interpretation by the court’s of the text. The court also makes explicit reference to the jurisprudence of the ECHR and takes inspiration of solutions adopted by the Court.

  2. Josefin says:

    The ECJ and the relationship after the accession of the Union to the Charter of Fundamental Rights and its effect for the ECtHR does not necessary mean that it is going to become a conflict between the two. As the authors of the text states, article 344 TFEU together with art 33 ECHR should be interpreted as to avoid any conflicts in jurisdiction. Article 33 ECHR states that all conflicts between the member-states regarding the Charter should be under the ECtHR’s jurisdiction; it is not an exclusive jurisdiction but rather a possibility. The conflict may be when a state is a contracting party to both the Union and the Charter, but most likely in these situations the will be dealt with by the ECJ. With the Union as a contracting party to the Charter, the ECtHR has jurisdiction to try the compliance with human rights within the institutions of the Union. This could only be a good thing.
    Instead of focusing on the possible conflict, which should be easy to solve as already shown, the
    two courts have a chance to continue to complement each other. The goal with the Unions accession to the Charter is strengthen protection of human rights within the Union. The ECtHR is the most competent court to deal with these issues and with the Union as a member, hopefully that is what is going to happen.

  3. Stina says:

    According to the opinion of the author EU´s accession to the ECHR is mostly a symbolic significance rather than a substantive significance. This might very well be true and it is the same with certain provisions of international conventions that exist under public international law. Written conventions might be based on customary law and the convention is therefore seen more as a codification of law that already exist. The point is that EU´s accession to the ECHR might not change the substance of rights but it sets out the relationship between the two courts.
    The ECtHR will to a certain extent “supervise” the ECJ when it comes to fundamental rights issues to make sure that the ECJ interprets provisions of the ECHR in a correct way. From now on the ECJ will be under judicial control in the same way as the national courts by the Strasbourg Court. One positive consequence of EU´s accession to the ECHR is that EU citizens are entitled protection against acts of the EU since the EctHR will have the competence to review EU acts and allow individuals to send claims before the EctHR against the EU after they have exhausted national remedies. The accession will ensure a coherent interpretation of the ECHR, since it will guarantee a similar development of fundamental rights in the case law of the ECtHR and the ECJ. In the Bosphorus case the ECtHR held that as long as the relevant organization, i.e. EU protects fundamental rights in a way that is at least equivalent, i.e. comparable but not necessarily identical to the Convention the ECtHR will consider that the legislation of the EU is compatible with the ECHR. Although the Bosphorus doctrine might be abandoned since EU nowadays is a contracting party to the ECHR and should be treated in the same way as the other contracting parties, i.e. must ensure the same level of protection of fundamental rights.
    I do not think that it will be a problem that both courts have jurisdiction over cases concerning interpretation and application of the ECHR since, as the author points out, the ECJ has referred to provisions of the ECHR as well as the case law long before the Lisbon Treaty entered into force. Although the accession of the EU to the ECHR was probably necessary to make it clear that these two courts coexist and that their jurisdiction to some extent overlaps.

  4. Pingback: Reading suggestion #2: EU accession to the ECHR – negotiations relaunched | EU Constitutional Law | Örebro universitet

  5. Pingback: The EU’s accession to the European Convention on Human Rights – the final version of the Agreement on the accession is adopted | EU Constitutional Law | Örebro universitet

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