Essay: EU accession

The accession of the European Union (hereafter EU) to the European Convention for the Protection of Human Rights and Fundamental Freedoms (hereafter ECHR) is a process that has been lingering on for years.

The Court in Luxembourg in 1996 claimed that accession was impossible under the competences at the time and that a Treaty amendment was required. The Treaty of Lisbon finally opened the door to accession: the new art. 6 of the Treaty on the European Union (hereafter TEU) contains an obligation for the EU to accede to the ECHR. With Protocol No. 14 to the ECHR the Council of Europe made accession possible on her part.

There are several reasons why EU accession to the ECHR is deemed necessary. First of all, accession would bring the EU and its institutions under the external control of the European Court of Human Rights (hereafter ECtHR), enhancing fundamental rights protection for individuals. Second, it would lead to a more uniform development of human rights law in Europe. At present there are two instruments applicable in Europe; the Charter of Fundamental Rights of the European Union (hereafter ‘the Charter’) and the ECHR. Open conflict in the application of human rights is unlikely because of the clear dialogue between the CJEU and the European Court of Human Rights (hereafter ECtHR), but cannot completely be excluded. To conclude, another argument in favour of accession is a rather symbolic one and a matter of image. The EU proclaims to be a legal order based on the rule of law with respect for fundamental rights, it is therefore considered that it should be part of the most elaborate human rights protection system on the territory of Europe.
Negotiations between the Council of Europe and the EU took off in 2010, first in the informal group CDDH-UE, later in the ad hoc group ’47+1′. These steps were concluded in June 2013 with a bundle of accession documents, including a Draft Accession Agreement (hereafter DAA) and a Draft Explanatory Report. These accession instruments were submitted to the Court of Justice of the European Union (hereafter CJEU) by the European Commission for an opinion pursuant to Article 218(11) TFEU. On 18 December 2014 the CJEU delivered its notorious Opinion 2/13, declaring the DAA and related accession instruments incompatible with the Treaties. The common thread throughout the Opinion is that the DAA fails to preserve the specific characteristics of the EU and the autonomy of its legal order. Although the negative outcome of this opinion came as a surprise to many and has drawn a lot of criticism, the previous case law of the CJEU already gave clear indications on the direction the CJEU would take. This dissertation aims at identifying how exactly accession under the conditions of the DAA would have interfered with the autonomy of EU law.
The EU would be the first non-state party, characterised by its own autonomous legal order, to accede to the ECHR. The negotiators of the accession instruments were confronted with several institutional, procedural and substantive problems related to the participation of the EU in the Convention system. On the side of the Council of Europe for instance adaptations were required to enable the participation of the EU in the Committee of Ministers, while on the side of the EU the main concern was that its special characteristics might be affected. Accession to the ECHR would bring the EU under external control of the ECtHR. The fear that this would have too great an impact on the autonomy of the EU legal order is the main impediment in the process of accession.

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