Opinion 2/13 of the Court of Justice of the European Union

Amanda Spalding, PhD Candidate, King’s College London, The Dickson Poon School of Law – Teaching Fellow, SOAS, School of Law

The Court of Justice of the European Union (CJEU) has finally given its opinion as to the validity of the draft agreement on the accession of the European Union to the European Convention of Human Rights. Unfortunately, it found that the draft agreement is not compatible with EU law. This is a significant set-back to an already complex and drawn-out process of accession.

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Accession to the ECHR: The Never Ending Story

Amanda Spalding

LLM student at King’s College London


On the 1st of December 2009 the new Treaty on the European Union came into force. Article 6(2) of that treaty provided that the EU shall accede to the European Convention on Human Rights and Fundamental Freedoms. In July 2010 negotiations began between the Council of Europe and the European Union in the form of an informal working group to draft an agreement regarding the accession of the European Union to the ECHR. These negotiations are the fruition of many years of debate over this issue and their outcome will likely have a fundamental impact on the EU. Two years have passed since the beginning of the negotiations, in this article I will explore some of the obstacles faced which may explain this delay.

Article 218 of TFEU sets out the procedure, which must be followed by the EU for accession to the European Convention of Human Rights and Fundamental Freedoms (ECHR). It requires the consent of all the Member States of the EU and of the Council of Europe. The Constitutional Treaty[i] had allowed for consent of the EU by qualified majority but this was changed at the request of Denmark in order to avoid the public perception that the EU could extend its powers without unanimous consent from the Member States. As Article 6 TEU specifically states that accession will not extend the competences of the Union, this seems unnecessary. However, as all EU Member States are also members of the Council of Europe, their consent would have been needed anyway. This has proven to be an obstacle to accession.

The accession process has already faced some difficulties on both sides. Russia held up the beginning of negotiations by being uncooperative regarding Protocol 14 to the ECHR, which allowed for accession of the EU. Now that negotiations have been ‘rebooted’, Russia feels that it will have to consent to any amendments made to the Draft Agreement[ii], if it does not it will withdraw its support for accession.[iii] This ‘rebooting’ of negotiations allows for representatives from all of the Council of Europe states to also propose amendments[iv] which may reveal more reservations on that side.

In the EU the reluctance to accede can be inferred already from the fact that the Court of Justice of the European Union (CJEU) in its Opinion of 1996[v] stated that the Treaties needed to be amended for accession to occur, yet it took over ten years for such a provision to be put in place. This shows a lack of enthusiasm, which is starting to reappear at present stage of accession. In 2010 the French government has expressed a desire to exclude the primary law of the EU from the jurisdiction of the European Court of Human Rights (ECtHR) as it may force Member States to amend the Treaty.[vi] It has also been keen to omit the Common Foreign and Security Policy from the ECtHR’s jurisdiction.[vii] The draft negotiations released reveal that there are obviously other Member States that also have issues with accession:

‘In the absence of a common position among the European Union Member States, some delegations from Member States of the European Union informed the CDDH that they were not in a position to express substantive views in the CDDH at the present stage and that more time was necessary for discussion at European Union level’[viii]

The paper then goes on say that it cannot resolve all conflicts that have arisen ‘given the political implications of some of the pending problems.’[ix] Several governments currently in power in the EU have already voiced issues with the current regime of rights in place. The Polish Constitutional Court is of the opinion that the EU is merely an international agreement[x] and the Polish Government has obtained a derogation of the Charter of Fundamental Rights.[xi] The UK also has derogation from the Charter[xii] and the Government currently in power has expressed interest in repealing the Human Rights Act 1998 and limiting the powers of the EU.[xiii] The current Government has also indicated that it wishes to narrow the jurisdiction of the ECtHR especially in light of accession to the ECHR by the EU.[xiv] These governments are unlikely to be supportive of yet another layer of rights protection in the EU. This appears to be the case as on the 25th of January 2012, Representatives of the Parliamentary Assembly of the Council of Europe and the European Parliament have urged national governments, particularly France and the UK not to stand in the way of the EU signing up to the ECHR.[xv]

As all the Member States are already signatories to the ECHR and people under their jurisdiction[xvi] may challenge their acts, the Member States may argue that this accession is unnecessary: “…one might say that Europe currently has a rich, fertile or perhaps even an excessive, focus on human rights.”[xvii] Again, this appears to be factoring into the opinion of the UK government.[xviii] Thus more negotiation and discussion will clearly be needed, which is likely to delay accession. Even without the already evident dissenting states, accession was unlikely to be straightforward given the number of states involved. ‘Even if we were all desperately anxious to get this through tomorrow, my experience of 47 Governments negotiating documents of this kind is you can be into years and years.’[xix]

The negotiations have also unmasked another possible anti-accession party, the CJEU. This may at first seem odd given that it was the Court itself that first incorporated rights into the EU and began referring to the Convention in its caselaw. However it must be remembered that in Opinon 2/94 the Court was unusually narrow in its interpretation of the Treaties. The CJEU may have perceived accession to the ECHR as a threat to its own power.  This can be seen in the defensive tone of the Court of Justice in its discussion document on accession.[xx] The Court seems almost petulant here, emphasising its own role and takes the view that accession is unnecessary as human rights in the EU are already protected:

‘…under the supervision of the Court of Justice, that human rights as guaranteed by the Convention are observed, even in the absence of an express obligation to that effect. As its case-law bears witness, the Court of Justice regularly applies the Convention and refers in that connection, more and more precisely in recent years, to the case-law of the European Court of Human Rights.’ [xxi]

It goes onto be very protective of its role in the EU system: ‘The Court of Justice has the task of ensuring that in the interpretation and application of the Treaties, the law is observed and it alone has jurisdiction … to declare if appropriate that an act of the Union is invalid.’[xxii]  The Court claims that giving the ECtHR the power to invalidate acts of the EU must avoided where possible. This will be potentially prove to be a dealbreaker in the negotiations. ‘From the very start of the negotiations it has been clear that that autonomy, which is jealously policed by the Court of Justice of the European Union, would be a major issue for the negotiators.’[xxiii]  Thus it seems the Court of Justice may voice strong opposition where it feels the mechanisms to be put in place will challenge its authority over Union law.

The other institutions of the EU shall have to take into account the views of the CJEU as it is very likely that at least one Member State will ask for a CJEU opinion as to the accession agreements compatibility with the Treaties.[xxiv] The CJEU has already shown that it may be uncooperative where it feels threatened.[xxv] There will almost undoubtedly be some effect on the EU’s autonomy as joining the ECHR has been assessed as resulting in ‘European States no longer embody insular, autonomous, self-defined legal systems.’[xxvi] The EU will need the CJEU as a contributor because if it does declare the accession agreement incompatible with the Treaties, then negotiations will have to begin again. Given the already evident reluctance of some of the parties,[1] this would be an undesirable delay. If any kind of incompatibility were found the Union would be forced to revise the Treaties before concluding the agreement; it is unlikely that the EU institutions would take such a risk, given the political importance..’[2] Thus the views and input of the CJEU will likely be a significant consideration for the negotiators.

Given the already evident dissatisfaction with accession, obtaining consent from all the Member States and the Council of Europe states is likely to be a drawn out and convoluted process. The CJEU has also shown it is weary of the effects of accession and will be unlikely to be cooperative if it feels its position is threatened. Thus throughout the negotiations there will be many different considerations present which means the current draft negotiations are relatively unlikely to mirror the final agreement.

[1] See above.

[2] J. P. Jacque ‘The accession of the European Union to the European Convention on Human Rights and Fundamental Freedoms’ (2011) 48(4) CMLR 995 p. 997

[i]  See the draft at http://european-convention.eu.int/docs/treaty/cv00850.en03.pdf

[iii] See Appendix VI, Statement by the Russian Federation in the working document ‘Relevant excerpts of the Report of the 75th meeting of the CDDH (19-22 June 2012)’ available at http://www.coe.int/t/dghl/standardsetting/hrpolicy/Accession/Working_documents_en.asp

[iv] See para 3 of Report of the first negotiation meeting between the CDDH and the European Commission on the accession of the European Union to the European Convention on Human Rights 21 June 2012, Strasbourg available at http://www.coe.int/t/dghl/standardsetting/hrpolicy/Accession/Meeting_reports_en.asp

[v] Opinion 2/94 [1996] ECR I-1783

[vi] Communication de M. Robert Badinter sur le mandat de négociation (E 5248) May 25, 2010, at: http://www.senat.fr/europe/r25052010.html#toc1

[vii] See I. Smirnova Godoy ‘EU Accession to the ECHR: Talks Enter Final Stretch.’ http://www.europolitics.info/eu-accession-to-echr-talks-enter-final-stretch-art338208-40.html

[viii] CDDH) Report to the Committee of Ministers on the elaboration of legal instruments for the accession of the European Union to the European Convention on Human Rights October 2011 p. 4

[ix] ibid p. 4

[x] Judgement of the Polish Constitutional Court 11 May 2005 available in English at www.trybunal.gov.pl/eng/summaries/wstep_gb.htm Last accessed 11/11/11

[xi] Protocol No 30 to TEU

[xii] Ibid

[xiv] Response to Question 34 European Scrutiny Committee – Minutes of Evidence HC 1492-I http://www.publications.parliament.uk/pa/cm201012/cmselect/cmeuleg/1492/11090701.htm

[xvi] Art 25 ECHR provides ‘The Commission may receive petitions addressed to the Secretary-General of the Council of Europe from any person, non- governmental organization or group of individuals claiming to the victim of a violation by one of the High Contracting Parties of the rights set forth in this Convention, provided that the High Contracting Party against which the complaint has been lodged has declared that it recognizes the competence of the Commission to receive such petitions’

[xvii] S. Douglas-Scott ‘A tale of two courts: Luxembourg and Strasbourg and the growing human rights acquis; (2006) 43 (3) CMLR 629, p. 630

[xviii] Response to Question 34 European Scrutiny Committee – Minutes of Evidence HC 1492-I http://www.publications.parliament.uk/pa/cm201012/cmselect/cmeuleg/1492/11090701.htm

[xix] Kenneth Clark, Oral Evidence to the European Scrutiny Committee, 7 September 2011 available at http://www.publications.parliament.uk/pa/cm201012/cmselect/cmeuleg/uc1492-i/uc149201.htm

[xx] Court discussion document on accession 5/5/10, available at


[xxi] ibid p.2

[xxii] ibid p. 3

[xxiii] T. Lock ‘Walking on a tightrope: the draft ECHR Accession Agreement and the autonomy of the EU legal order” (2011) 48 CMLR 1025, p.1028

[xxiv] Under Art 218(11) TFEU

[xxv] ‘an international agreement may affect its own powers provided that the indispensable conditions for safeguarding the essential character of those powers are satisfied and, consequently, there is no adverse effect on the autonomy of the European Union legal order.’ Opinion 1/09 [2011] ECR I-02099

[xxvi] H. Keller and A. Stone Sweet A Europe of Rights  (Oxford University Press, Oxford, 2008) p. 677.