EU Law and the ECHR: Will EU Accession to the European Convention on Human Rights Square the Circle?

Abstract

The article examines how the draft Agreement on Accession of the EU to the ECHR, which was agreed at the negotiators’ level on 5 April 2013, deals with issues of EU law. The rather complex clauses on attribution and responsibility as well as procedural arrangements such as the co-respondent mechanism and the prior involvement of the ECJ can be explained by the concern to accommodate the specific characteristics of the Union and Union law. At the same time, it is necessary to preserve the essential features of the Convention system, such as the authority and prerogatives of the ECtHR, the equal treatment of Contracting Parties and the subsidiary nature of the protection mechanism. The importance and urgency of EU accession to the ECHR to achieve legal certainty and coherence are underlined. The recent fundamental rights case law of the ECJ reveals a trend to interpret the provisions of the EU Charter usually in isolation from the jurisprudence emerging from other human rights instruments. The ECJ draws only sporadically on international human rights sources, insisting that it remain the final and authoritative arbiter of their meaning and impact within the EU. ECJ case law focuses increasingly on the EU Charter, thus raising doubts about the continuing convergence between the two European human rights systems. Against this background, rapid EU accession to the ECHR becomes even more important. The draft accession agreement represents a fair compromise between the different interests at stake. The implementation of EU legislation adopted within the framework of the area of freedom of justice which relies on mutual recognition and trust raises serious human rights issues. The ECtHR may have a useful role to play in reminding the EU and its member states that mutual recognition should not undermine the core values on which it is founded.

Keywords: Human Rights, European Court of Human Rights, European Convention on Human Rights, Bosphorus presumtion, European Court of Justic, Draft Agreement on Accession of the EU to the ECHR