Another interesting public lecture took place in the University on the 23rd of March 2017. It was entitled “Accession of the EU to the ECHR: Problems, Challenges and the European judicial perspective” and was delivered by Dr Stelios Andreadakis.
The journey of the European Union towards joining the Council of Europe, the organisation to which the European Court of Human Rights forms part of, began in 2009 with the ratification of the Lisbon Treaty. It was stated in Article 6 of the Treaty that the EU should accede to the ECHR. For that reason, there have been negotiations between the EU and the ECHR towards concluding an agreement that would allow the EU to join the Council of Europe.
Accession to the ECHR has gradually become increasingly important to the EU. The EU, when it was originally created constituted mainly a trading union, which aimed at the economic rebirth of the continent after World War 2. Gradually, it developed into the idea of a United Europe, whose states share the same values and objectives. However, this idea of a United Europe has a ‘missing link’. Not every member state is at the same level in terms of financial situation or human rights, especially when they initially join. Time is needed in order to catch up both in financial terms, and implementing EU Law and Directives.
The idea of accession was conceived having in mind the benefit of the EU citizens, in order to achieve the universal respect of Human Rights in all the members of the Union. For example currently, an individual can bring a claim against a country for breach of the ECHR, but not against the EU itself, regardless if that country is a member of the Union.
After accession, both institutions are expected to keep functioning in the same way as they did before. Since they are both successful in their missions, there will be no need for any amendments to the way they function.
Nevertheless, problems have arisen in the path towards accession to the ECHR. To begin with, all members of the Council of Europe, including the EU if it joins, have to be on equal footing. That cannot be, since the EU is not a state itself. Secondly, if the EU joins, the member states of the EU might vote in the Council of Europe in accordance with the EU’s agenda. So in a sense, the EU might be able to ‘control’ the Council of Europe. Thirdly, there is a purely legal dilemma as well. Which court will have the final word in cases concerning human rights? The Court of Justice of the European Union or the ECHR of the Council of Europe? The relation of the two aforementioned courts has been described as “Two hedgehogs trying to come close”. Finally there is the political aspect, since not all the EU member states are on the same page regarding the accession. The European Charter of Human rights is in force, therefore the argument is that since we have legislation on the protection of human rights in the Union, and all the member states of the EU are members of the Council of Europe, there is absolutely no reason for the EU to join as well.
Despite the will of the EU for the accession, there is still a long way to go. Even if an agreement is eventually reached, all 28 (or 27 after Brexit) member states of the EU have to ratify the agreement, on top of the 47 members of the Council of Europe. However, the greatest problem lies elsewhere. The ECJ has given a negative opinion regarding the accession when it was asked to do so. The legal opinion was heavily criticized by legal professionals and academics.
Since the decision of the ECJ, there have not been any new developments to the negotiations. At the present stage, the Bosporus principle is used. The EU is still liable to uphold and apply the provisions of the ECHR regardless if it is not a member of the Council of Europe. Nevertheless, since there is mutual trust and understanding between the institutions, the presumption is that the EU complies with these provisions, unless the applicant can prove otherwise. However the negotiations many years to come, and such a situation is not proper for an institution like the EU, which requires scrutiny. What is more, there are several problems with the Bosporus principle. Firstly the EU special, and its relations with the ECHR cannot be forever under the Bosporus principle. Secondly, by accepting Bosporus, the ECHR restricts itself in the protection of human rights.
Dr Andreadakis proposed some solutions to the dead end that the accession has come to. One option is to change the Treaties of the European Union to make accession easier to realise. That, however, might open the floodgates for further changes demanded by the member states, and thus this option is not viable. Another solution is for the negotiators to find a way to accede even with the decision of the ECJ on the table. It is by no means easy, but for the time being at least it is the only realistic path to follow.
Conlcuding, Dr. Andreadakis stated that if this idea does not materialise as quickly as possible, it will eventually die. He argued that the need for accession is even higher today for the EU, especially with Brexit looming. The EU must take steps forward, towards deeper integration and prove that it still stands firm. In his closing words, Dr Andreadakis repeated that an accession of the EU to the ECHR shall be to the benefit of the citizens of the EU. However, perhaps the accession is a step the EU is not ready for yet.
Written by Constantinos Alexandrou