Thursday, 1 September 2011

Draft Agreement on EU Accession to ECHR

Over summer, a draft agreement on the accession of the EU to the ECHR - I reported on negotiations here - has been made public. This draft was negotiated between the Steering Committee for Human Rights of the Council of Europe (CDDH) and the European Commission of the European Union. It sheds light on the practicalities of EU accession. A few of the most notable points:

* The main rationale for accession mentioned by the agreement is increasing coherence in European human rights protection and offering individuals the possibility to access the Court in Strasbourg which can externally control the "acts, measures or omissions of the European Union."

* The European Union will not accede to all (substantive) protocols. Accession (with possibilities for more in the future remaining open) will be limited to the ECHR itself, its first Protocol (including the protection of possessions and the right to education amongst others) and Protocol 6 (abolition of the death penalty). Especially the latter seems merely a symbolic act and it's interesting to note that Protocol 6 leaves open the possibility to use the death penalty in times of war (whereas the more comprehensive Protocol 13 abolishes the death penalty in all circumstances).

* There will be a judge elected in respect of the European Union who will have the same duties and status as the other judges and will participate on an equal footing in the work of the Court. This means that the work of this judge will not be limited - as some expected earlier - to cases related to the EU. For the procedure of election a delegation of the European Parliament will participate, with the size of that representation being equal to the highest number of representatives to which a state is entitled under the statute of the Council of Europe.

* Reflecting the fact that states can act in pursuance of EU law and that states are at the basis of the primary law of the EU, a so-called co-respondent mechanism is foreseen. This means that both EU member states and the EU can, when they so wish, ask to be involved in cases as co-respondent party (rather than as mere third intervening party). The circumstances under which this is possible are set out in the agreement. In practice this will be rare. The drafters noted that only very few cases in the past would have qualified for such a procedure (amongst them Matthews v. UK and Bosphorus v Ireland).

* Whenever the EU is co-respondent and the Court of Justice of the EU (CJEU) has not yet had the opportunity to assess the compatibility of EU law with the ECHR in a particular situation, the Agreement provides for the possiblity for the EU's Court to make such an assessment "quickly" - which will mean under the accelerated procedure of the CJEU.

* The possibility of inter-state cases will with the accession be broadened to inter-party cases, entailing that other states could start proceedings against the EU and vice versa. The exception are EU member states themselves, since EU law bars them from using such other international means of dispute.

* The EU will also participate in the work of the Committee of Ministers of the Council of Europe and have voting rights. In certain circumstances, for example when EU law requires the EU as such and its member states to coordinate their actions (and thus vote similarly in international fora) the agreement includes special voting procedures in order to avoid that the 27 EU member states (a majority within the 47 state Council of Europe) would de facto overrule the others in matters such as the supervision of the execution of judgments and friendly settlements in cases involving the EU.

* The agreement will enter into force three months after ratification by all Council of Europe member states and by the European Union. The modalities of EU ratification are dependent upon EU law. Note that this unique agreement involves many states on two sides of the negotiating table. As experience with the ratification of ECHR protocols shows, this whole process may take a few years.

* Finally, and very important in practice, the EU will fund part of the budget of the Council of Europe's human rights machinery.

A full list of the relevant documents (with links) can be found here.

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