The European institutional foundation for human rights protection

Introduction

On 30 December 2014 I wrote a post containing a commentary of the recent Full Court Opinion 2/13 concerning the EU accession to the ECHR and luckily the post awakened some reactions and a number of questions were voiced.

An interesting point that can be made relates to the questioning of the necessity of the accession, in the meaning that the same values and same peoples supporting those values are to be found at the origins of both institutions: the Council of Europe and the European Union. So, which is the cause of dissensus and why is the accession so important after all? I start by giving some basic information about the institutional and substantive pillars that support the foundation of human rights in Europe.

Council of Europe - leading human rights organisation in Europe

It includes 47 member states, 28 of which are members of the European Union. All 47 member states signed and ratified the European Convention of Human Rights. The European Court of Human Rights ("ECtHR") oversees the implementation of the Convention in the member states. Individuals can bring complaints of human rights violations to the Strasbourg Court once all possibilities of appeal have been exhausted in the member state concerned.

The European Union is expected to sign the European Convention on Human Rights, since it has an obligation to accede according to the Treaty on the European Union/Lisbon Treaty. Here you may read the Accession Draft that has been negotiated by the the steering Committee for Human Rights ("CDDH") and the European Commission on behalf of the EU.

Four bodies of the Council of Europe must be distinctly mentioned:

• Committee of Ministers, who gave an ad-hoc mandate to CDDH to conduct negotiations for the accession of the EU on its behalf.
• European Committee of Social Rights - enforcer of the European Social Charter, elected by the Committee of Ministers
• Parliamentary Assembly
• European Court of Human Rights.

The Council of Europe was founded in 1949 by the same fathers as the European Economic Community, established in 1957.

European Council

It is basically a forum for discussions for EU leaders and it has no powers to pass laws. It became an official institution of the EU in 2009. It proclaimed the Charter of Fundamental Rights of the EU in Nice on 7 December 2000.

Council of the EU

The Council is an essential EU decision-maker. It negotiates and adopts new EU legislation together with the European Parliament through the ordinary legislative procedure, also known as co-decision. The co-decision mechanism is used for policy areas where the EU has exclusive or shared competence with the member states. In these cases, the Council legislates on the basis of proposals submitted by the European Commission. The Council of the European Union has its origins in the 1952 Treaty of Paris, which established the European Coal and Steel Community. The latter becomes the European Union through the force of the Treaty of Lisbon ratified in 2009.

Human Rights as General Principles of EU Law

The European Court of Justice held that fundamental rights ranked as general principles of EU law and that they were derived from two sources (Case C-260/89 ERT [1991] ECR I-2925, paragraph 41):

• the constitutional traditions of the Member States;
• the international Treaties to which the Member States belonged, in particular the European Convention of Human Rights.

Rights and Principles of EU law as reaffirmed by the articles of the Charter

With the entry into force of the Treaty of Lisbon on the 1 December 2009, the Charter becomes legally binding and enjoys the same status as the Treaties. The Charter contains:

• all rights and freedom in the ECHR;
• other rights and principles resulting from the common constitutional traditions of EU countries and other international instruments;
• all rights recognised in the jurisprudence of the CJEU.

Important cases for the enforcement of the Charter are inter alia the following: DEB, Volker, Scarlet Extended, Melloni, ?kerberg, Digital Rights Ireland.

Why is the accession of the EU to the ECHR so important for the Member States of the EU?

As mentioned above the Council of Europe and the European Union were conceived by the same founding fathers and serve the same values: rule of law, democracy and human rights. Both the Charter of Fundamental Rights of the EU and the jurisprudence of the CJEU express the duty to comply with the interpretation given by the ECtHR to human rights enshrined in the ECHR and reaffirmed by EU law. Moreover the ECtHR observes the interpretation given by the CJEU to all matters of EU law that present importance in a case brought before the Court of Human Rights. There is a commitment not to diverge and to mutually respect each others exclusive jurisdictions. Utterly this commitment is reflected by the Bosphorus case where ECtHR was called upon to clarify when EU Member States could be held responsible for actions taken within the exercise of implementing EU law.

Under the doctrine of Equivalent Protection established in Bosphorus ruling, any act of a Member States that originates in obligations imposed by the Treaties is deemed compliant with the ECHR insofar as the EU protects human rights, both in substance as well as in its control mechanisms, in a way considered to be equivalent to that required by the ECHR.

The commitment not to interfere with each other's exclusive jurisdiction made between the ECtHR and CJEU in matters of interpretation of the law is a source of concern for the Member States, since the EU can not be made responsible not being a party of the Convention and they have to balance on a rope between the obligations imposed by the Treaties and the ones derived from the ECHR, even if this may happen only in those rare cases where a virtual conflict might be envisaged.

It might sound paradoxical but an agreement not to disagree made between the supranational EU and the international Council of Europe forms the base for a confrontation of wills. The unanimous will of the Member States aims for a soon accession, the European Commission supports the Member States, while the CJEU the defender of the legal autonomy of the EU expresses a slightly divergent will.

Why is the accession necessary? For many reasons:

- to allow individuals to challenge EU laws in the same way as they challenge national laws;

- to create a single, comprehensive and coherent legal framework for protecting human rights across the continent;

- to fill the gap created by the Bosphorus ruling;

- to enhance the credibility of the EU in the eyes of third countries, which the EU regularly calls upon, in its bilateral relations, to respect the ECHR.

What are the reasons for the pressure exercised by the CJEU?

- The ECtHR is not an EU institution, thus the constitutional control of the EU legal order would be externalized;

- The interpretation of the ECHR given by the ECtHR would be binding on the EU, whilst the interpretation of the primary EU law, including the Charter given by the CJEU would not be binding for the ECtHR;

- The EU is not a state in relation to the Member States of the EU, but it has a position and a role provided by the Treaties, which could be endangered if the EU were to be treated identically in every respect as any other Contracting Party of the ECHR;

- The Member States of the EU have duties among themselves with regard to the observance of human rights and mutual trust, while a Contracting Party is supposed to check whether any other Contracting Party observes its human rights obligations, that's to say a climate of distrust is promoted with reference to compliance;

- The other reasons have been developed in my anterior post: True North for the European Human Rights Standard, published on Dec 30, 2014.