The idea that the EU should accede to the European Convention on Human Right (ECHR) was first proposed by the European Commission in 1979. On 5th of April 2013 the final version of the Draft Agreement on Accession of the EU to the ECHR was presented by negotiators of the 47 Council of Europe Member States and the EU, and constitutes one step closer to a complete accession. Thorbjørn Jagland, the Secretary General of the Council of Europe, welcomed the Accession Agreement by stating that
“[t]his is a decisive step, paving the way to EU accession to the European Convention of Human Rights. It will contribute to the creation of a single European legal space, putting in place the missing link in the European system of fundamental rights protection”.
The accession process began with the Council referring the question of accession to the Court of Justice of the European Union (CJEU), who first issued its position in Opinion 2/94. At that time the CJEU held that the EU was not equipped for accession. The reason was that EU did not provide a legal basis for a possible accession. However, the entry into force of the Lisbon Treaty in December 2009 solved the issue by establishing Article 6(2) in the Treaty on the European Union (TEU) that ensures that the EU shall accede to the ECHR and to Protocol 8 of the Lisbon Treaty, which sets the preliminary guidelines of such participation. Hence, Article 6(2) TEU regulated the legal basis for final accession.
The negotiations between the EU and the Council of Europe began in June 2010, when an informal working group – the Steering Committee for Human Rights (CDDH) together with the European Commission were given mandates to present the necessary legal instruments required for an achievable accession. However, it was no secret that there were disagreements between the EU Member States and that the legal instruments were not successful in order to fulfill accession. The reasons behind the difficulties of accession were related to the fact that the EU was not considered to be a state, but rather a supranational organization. During the negotiations the necessary aim was to implement the idea that the EU should be treated with equal footing like other High Contracting Parties to the ECHR as far as it could be possible despite of the different nature of the EU.
One could question why the EU needs to accede to the ECHR? Historically, after World War II two different regimes for the protection of human rights emerged in Europe. The aim of the ECHR was to offer protection of fundamental civil and political rights and provide for enforcement machinery through the European Court of Human Rights (ECtHR). In general, individuals had the right to claim that their rights had been violated in one of the states and therefore be able to bring their case to ECtHR after exhaustion of domestic remedies. In comparison with the EU, this supranational organization developed a separate legal order, with the CJEU placed in Luxembourg as its highest court.
In order to enter the EU, the states are required to be a party to the ECHR. Although the EU is founded on the respect for fundamental rights, the judicial mechanism established by the ECHR does not formally apply to EU acts. However, there is still a requirement for the EU Member States to respect the obligations under the ECHR in situations when they apply or implement EU law. In Tommaso Pavone’s article, “The Past and Future Relationship of the European Court of Justice and the European Court of Human Rights: A Functional Analysis” (published in 28 May 2012 on the SSRN website and commented on this blog), he describes the different roles of the Courts. He observed that the ECtHR is responsible for dealing with questions of democracy, human rights and the rule of law, and that the CJEU is mostly focusing on economic integration, due to the fundamental purpose of establishing an internal market. Even though both Courts have the fundamental protection of human rights as their foundation, these Courts in fact have jurisdiction over different areas. However, this picture expected to be changed due to the enforcement of the Charter. The Charter has formally taken all the rights in the ECHR and also introduced new rights. The CJEU is now obliged to interpret a human rights instrument without the main experience and expertise of the ECtHR. For that reason, it might be problematic to create two separate bodies of law and have two separate courts interpreting them, because of the risk of misinterpretation of the rights and discordant jurisprudence. Consequently, the accession will result in a strengthened protection of human rights in Europe; given that the EU’s legal system would be submitted to an independent external control with the primary capacity of interpreting and protecting human rights provisions. Furthermore, the accession will ensure a closing of the gaps in the legal protection and enhance consistency between the CJEU and ECtHR case-law. The accession will put the citizens’ protection in the focus, since it will lead to offer the citizens protection against the action of the EU similar to what the citizens already enjoy against action by all Member States. Hence, an elementary judicial protection of human rights will be guaranteed for the individuals throughout the whole Europe. Fundamentally, the accession to the ECHR will lead to a stronger human rights protection, since the Union would be bound to respect the ECHR and be subject to the external control of the ECtHR.
In accordance with the definition of a state in Article One of the 1993 Montevideo Convention on the Rights and Duties of States, a recognized state must possess the following qualifications – a permanent population, a defined territory, government, and capacity to enter into relations with the other States. With the entry into force of the Lisbon Treaty, the EU has gained a “legal personality” and has the legal right to sign treaties and create a diplomatic ability to negotiate the EU’s relations with third countries. Hence, in theory the EU could be considered to have satisfied the requirements for a qualified “state”. Does this, consequently, mean that the EU constitutes a State? The very fact that the accession will recognize the rights of individuals to take legal proceedings against EU institutions will strengthen the view of “the Union’s specificity as a distinct legal entity vested with autonomous powers”. In the final version of the Draft legal instruments on the accession of the EU to ECHR, produced in July 2011, certain adjustments were established due to “the specific legal order” of the EU and it was clarified that the terms “State” and “State party” in the ECHR were also applicable to the EU. However, the Member States’ delegations disagreed with interpreting the Union as a state. The delegation from the Member States succeeded in introducing amendment to the Preamble expressly recognizing the specific legal order of the EU, which is therefore not a state, even if the EU will accede to the ECHR (see the working document from the Presidency). This has as well been clarified in the final Accession Agreement that some adaptation would be necessary to take because of the acknowledgement that the EU is not a state. Nevertheless, the essential purpose with the Accession Agreement is still to preserve that EU should, as a matter of principle, accede to the ECHR on an equal footing with the other Contracting Parties, thus, have the same rights and obligations. On the other hand, the very fact that EU has the legal capacity to accede to the ECHR will be enough for some to argue that the EU now constitutes a state.
Concluding, the accession to take place seems to be a positive step because it strengthens the protection of fundamental rights in Europe. The economic attitude within the EU will be more balanced with other perspectives. Because of the CJEU’s limited experience in dealing with cases involving human rights violations, the CJEU will benefit from the knowledge and extended expertise of the ECtHR through the accession. However, even though the Accession Agreement has been finalized, the accession is not yet concluded. The procedure for now is that the CJEU must first be asked to give its opinion in accordance with Article 218(11) TFEU, since the accession constitutes an international agreement between the Union and other parties. Furthermore, the Council of the EU must unanimously agree on the accession, and obtain an approval of all Member States as well “in accordance with their respective constitutional requirements” (Article 218(8) TFEU). Lastly, all the Contracting Parties of the ECHR must ratify the international agreement. Thereafter, the EU’s accession to the ECHR would finally be completed. One can hope that the final accession will not take as many years as the process of negotiation did.
by Elisabeth Aronsson, Hevi Dawody and Magnus Österdahl
 According to the definition of a state by Max Weber, there are other requirements as well, such as territory, population, a number of institutions, monopoly of violence, sovereignty (internal/external). Weber defines the State as “a human community that claims the monopoly of the legitimate use of physical force within the territory” (see Simeon Mitropolitski’s article, published in SSRN on 26 April 2011, p. 1). His definition is applied in the area of contemporary political science.