LLB (Hons) King’s College London; LLM Student University College London
The former European Community (EC) could hardly be associated with protection of human rights: the dominant idea underlying the Community was, originally, the creation of economic union and the establishment of a common market. Although there was a limited number of social policies, these developed on an ad hoc basis and ‘were limited and applied primarily to economic areas’. After the revolutionary decision in Van Gend en Loos the situation started to change: an alternate vision of the Community began to develop, which aimed to protect individual rights.
Since the coming into force of the Treaty of Maastricht, a significant shift from the old EC to the new EU resulted to strengthen the status of fundamental rights. This departure from the concept of a purely economic community led to the introduction of the Charter of Fundamental rights in 2000. Since the EU currently has a greater focus on human rights, it was suggested that a higher level of protection could be achieved by the EU accession to the European Convention on Human Rights (ECHR). Although the matter has been floating since the 1970s, it was only in early 2013 when the draft for the accession was finalised. While this step might open Pandora’s Box for complications given the difference in approaches between Strasbourg and Luxembourg, it is much needed for the purposes of harmonised application of the ECHR in the Member States as well as symbolic reiteration that the EU is adhering to the principle of equality and protection of individual rights.
After the proclamation of the Charter as binding, the relationship of the EU with the ECHR became central. The Charter, based on the legal principles of democracy and the rule of law, is seen as the equilibrium between EU law and constitutional norms of the Member States. Given its binding nature, it appears that external control from Strasbourg is, at its best, redundant. The research conducted by De Búrca confirms that after 2009 the recourse to the ECHR by the CJEU significantly declined: in 122 cases involving the Charter, only 20 referred to the ECHR. Prior to 2009, the reverse was the case. The reason for such preference might be the simplicity of its usage as well as far more extensive list of rights protected compared to the ECHR. There are hurdles to overcome before turning to the European Court of Human Rights (ECtHR): exhaustion of domestic remedies, satisfaction of the so-called ‘victim requirement’, obliging litigants to cut their way through the hierarchy of national courts before giving the possibility to appear in Strasbourg. Where the Charter is relied upon, cases may be decided by means of preliminary reference from Luxembourg. Furthermore, for example in the UK, the ECHR is not binding in nature. By virtue the Human Rights Act 1998 it should merely be ‘taken account of’ leaving victims without a remedy until legislation is set aside or compensation paid. The Charter, by contrast, does not require any wait for the governmental response – once the breach of EU law is identified, the repugnant measure is immediately ineffective.
The CJEU jurisprudence demonstrates efficiency of protection provided by the Charter alone. As seen in Kadi it is a tool to review the legality of EU measures, requiring interpretation to be in accordance with human rights standards. By virtue of the horizontal provisions of the Charter expressly emphasizing that ‘[they] are addressed to the institutions and bodies’, it is possible to draw another distinction: it seeks strong centralizing force while the ECHR sets a vertical relationship.
The universality of the ECHR application may result in the asymmetry of powers. In Opinion 1/91, the CJEU reiterated that the establishment of the judicial system to which the Community would be a subject. In the case of the European Economic Area (EEA), however, it held that there was no compatibility between the first agreement and the Treaty. Nevertheless, the threat to autonomy is premature – Article 6 TEU explicitly states that such accession shall not affect the Union’s competences. While the current autonomy of the EU will not be lost, the harmonisation in the application of the ECHR will finally be achieved. The doctrine of the margin of appreciation provides for the rights being protected on a somewhat ad hoc basis, differing from state to state. The accession, in turn, will ensure that the EU as a whole is subject to the same supervision where human rights protection is involved. Thus, due to inherently broad competences of the EU ‘it is ever more difficult to accept that it should be the only “legal space” left in Europe which is not subject in the same way as State Parties to the Convention to external scrutiny by the European Court of Human Rights’.
Although it was stated that the CJEU may use the terminology of fundamental rights offensively to extend its own jurisdiction to the areas preserved for the national courts and thus to confirm the primacy of EU law, a mere residual role for the ECHR might not prove beneficial. Ronkes argues that ‘fundamental rights protection is taken as an explicit starting point and the Charter is imbued with iconographic significance for the Europe of peoples as distinct from the Europe of markets’. The accession would allow the CJEU to appear in Strasbourg as a party to the proceedings. Since the enforcement of the Charter the number of cases involving violation of human rights significantly increased which would, despite the efforts to the contrary, lead to the potential risk of opposition and contradictions between the CJEU and Strasbourg. The new system would prove advantageous for litigants, especially when the whole EU is at fault; in cases where only ignorance of EU law could have saved the Member State from violating a right, both – the Member State and the Union would become the co-respondents before the ECtHR. This would ensure the direct enforcement ‘against both the party, responsible for the act or omission causing the violation and the party, responsible for the legal basis of that act or omission’. The CJEU will escape the need to rule on the allocation of competences between the Union and the member state in question.
Overall, the accession to the ECHR in the presence of the Charter may be a complication since the approaches of the two courts differ significantly. Although the Charter possesses only limited powers, it enshrines certain political, economic and social rights with the central purpose to codify and clarify the fundamental rights protection. Indeed, the double standard may not prove redundant. The data confirms the trend – in contrast with the Charter, the ECHR does not gain as much popularity amongst the judges in the CJEU.
Despite the fact that arguably the CJEU jurisprudence already adequately protects human rights the accession will add a new dimension to the human rights field. Due to paradoxical structure and dynamic nature of the instruments, they will have to respond to socio-political changes. Unlike the Charter, addressed to the institutions of the Member States, the ECHR is universal. The accession would lead to harmonization of human rights standards, distorted by the margin of appreciation and let both the EU and the Member States to defend themselves before the Strasbourg court. Furthermore, the implications would go beyond the scope of the issues of equality and dignity – accession would enrich both national and supranational legal systems through interactions of various EU institutions, which became possible due to the sui generis legal order created by the EU.
 Barnard, C in Hervey, T and O’Keefe, 1996, Sex Equality Law in the European Union, Chichester, at 322-324
Van Gend en Loos v Nederlandse Administratie der Belastingen  ECR 1
De Búrca, G, After the EU Charter of Fundamental Rights: the ECJ as the Human Rights Adjudicator?, 2013, NYU Public Law Papers, at 7
Douglas-Scott, The EU and Human Rights After the Treaty of Lisbon, 2011, HRLR, 1, 657
Gorgülü v Germany (2004) 74969/01
 A v UK (2004) UKHL 56
Kadi v Council of the European Union  1 AC 1225 paras - and 
 Art 51 Charter
 1991 I-06079
 (1991) ECR I-6079
Art 6 TEU
 Angerbeek Ronkes, 2004, Freedom of Expression and Free Movement in Brenner Corridor: The Schmidberger Case, EULR
 Coppel, J and O’Neill, A, 2006, The European Court of Justice: taking the rights seriously? LS
Art 6 TEU