303A Crucial Moment for the Accession of the European Union to the European Convention on Human Rights[*]

Christos Giakoumopoulos

Fmr. Director General of Human Rights and Rule of Law at the Council of Europe, Member of the Management Board of the EU Fundamental Rights Agency

In my short introductory remarks, I will endeavour to explain how the issue of the accession of the European Union (EU) to the European Convention on Human Rights (ECHR, the Convention) –which, as is well known, is not a new issue– is now reaching a crucial moment. This accession is indeed a long-standing political priority of the Council of Europe and, since the Lisbon Treaty, a legal obligation of the EU[1].

The whole discussion about the accession goes actually back to the late 1970s, when the European Commission (the Commission) proposed that the European Community accedes to the ECHR[2]. In 1994, the Court of Justice of the European Community (CJEU, the Luxemburg Court) was asked to deliver an opinion as to whether the accession of the European Community to the ECHR would be compatible with the Treaty establishing the Community. The Luxembourg Court held in its opinion that the institutional implications of the accession of the European Community to the ECHR would go beyond the scope of the provisions of the Treaty, which might have provided a legal basis for the accession[3]. Consequently, there was no legal basis in the law of the Community for such an accession.

The problem of the lack of legal basis was subsequently resolved by Article 6.2 of the Lisbon Treaty[4]. The competence to accede was unequivocally established and there is also, in my view, an obligation for the EU to accede to the ECHR. However, before this accession materialises, a number of delicate legal issues, mostly linked to 304the specificities of the EU, needed to be addressed in a series of legal instruments. Thus, in 2013 a package of draft accession agreements[5] allowing the EU to accede to the ECHR were adopted by the Steering Committee of Human Rights (CDDH, acronym for Comité directeur des Droits humains) of the Council of Europe, following negotiations between the (then)[6] forty-seven member states of the Council of Europe and the EU, represented by the Commission. The Commission submitted these draft agreements to the Luxembourg Court with a view to obtaining an opinion as to their compatibility with EU law. In its Opinion 2/13, the CJEU found that the agreement, as drafted, was not compatible with Article 6.2 of the Treaty[7]. I believe that this Opinion came as a surprise not only to the Council of Europe and the Commission, but also to the EU member states, the huge majority of which were in favour of the accession agreements and had pleaded before the Luxembourg Court in support of their compatibility with EU law. Be that as it may, the Opinion of the Luxembourg Court stopped the whole process for several years, as the issues raised in it needed to be addressed by the Commission and the Council of Europe.

In 2019, Jean-Claude Juncker, then President of the European Commission, informed the Secretary General of the Council of Europe, Thorbjørn Jagland, that the negotiations could resume. These were again entrusted to the CDDH. The group examined the issues raised in the Opinion 2/13 of the CJEU in four “baskets”. The first one was about the EU-specific mechanisms of procedure before the European Court of Human Rights (ECtHR, the Strasbourg Court). The second one dealt with the issue of inter-party applications, that is, applications before the ECtHR concerning disputes between EU member states or between any of these states and the EU. The third one was about the implications of the principle of mutual trust in the proceedings before the ECtHR. The fourth and last one was about the common foreign and security policy (CFSP). David Milner, who served as Secretary of the negotiating group –and played a pivotal role in securing the excellent results achieved– contributes to this special issue with a more in-depth analysis of the provisions of the draft agreements, their implications and their interplay. For present purposes, I will simply observe that the result[8] communicated to the Committee of Ministers of the Council of Europe showed a 305unanimous agreement on solutions for baskets 1 to 3. The group considered that the draft agreement satisfies the principles on which it had agreed to work, namely to safeguard the rights of applicants in the ECHR proceedings, to preserve the equality of all High Contracting Parties, and to safeguard the control mechanism of the Convention, taking into account, as far as possible, the EU particularities. As regards basket 4, the Commission informed the negotiating group that this issue was to be resolved internally in the EU and that there was no need for the negotiating group to address it[9]. Indeed, the question whether the CJEU is competent to consider cases referring to the external policy of the EU –and if so, under which conditions– may have been resolved by the judgment in the cases of KS and KD[10]. These cases concerned ineffective investigations by EULEX into the deaths of family members of the applicants and raised issues under the right to life. I believe it is quite clear from the judgment that the basic principles of the EU legal order and in particular the respect for fundamental rights apply also to the CFSP; therefore, both the EU and member states authorities should be subject to judicial review. Consequently, the CJEU, while it has no competence to rule on political strategic choices made by the EU, has nonetheless jurisdiction to rule on acts or omissions that relate to the human rights aspects of these policies. If, as I believe, the issue of the CFSP is thus resolved, the Commission will have to inform the Committee of Ministers thereof. As no such step has been taken so far, I guess that there are still discussions as to the exact scope and effects of this judgment.

There is no doubt that the accession of the EU to the ECHR raises delicate legal problems. Professor Vassilis Tzevelekos and Demi-Lee Franklin identified some possible issues in respect of the co-respondent mechanism and joint responsibility for human rights violation by the EU and one or more of its member states[11]. Those who might be against the accession will probably claim that these problems are unsurmountable. I believe they are not and that they can be solved –besides, the two authors highlight good faith as the crucial safeguard for the smooth and proper functioning of the co-respondent mechanism as intended. It is important to note that the accession agreement cannot address each and every difficulty that could possibly arise in the framework of the accession. We must in this respect trust that the Luxembourg and Strasbourg Courts will address the issues that will emerge. This is why it is extremely important that papers like 306the one I have just mentioned and meetings like the one that led to this special issue can look into various matters that may arise and provide discussions and directions that may inspire the Courts.

The accession of the EU to the ECHR on the basis of the new draft agreement is not only possible, but also useful, above all for the EU. First of all, because the EU, as a supranational entity with legislative competences, with powers affecting millions of European citizens –and many others, too– cannot be absent from the only European accountability system providing for a collective human rights guarantee, that is, a guarantee offered by all states parties to the ECHR for the respect of human rights and freedoms by each and every state or entity party to this Convention. From this perspective, the fact that the EU Charter of fundamental rights has filled a possible gap in the protection of human rights within the EU is not really relevant. Even though the list of rights in the EU Charter of fundamental rights is more complete than the one in the ECHR and its Protocols, and even though the Charter has been given legal force, the Charter operates within the legal space of the EU in the same way as any national constitution, but contains no element of a collective international law guarantee similar to the one created through the ECHR in Europe after WWII. For the EU, becoming a party to the ECHR and subject to the jurisdiction of the ECtHR is actually a sign of democratic maturity. It is a sign of trust to its own institutions, to international rule of law and to multilateralism. Remaining outside the ECHR system may be interpreted as a weakness; and, I believe, it is not in the interest of the EU, particularly today, to give the impression that it is unable to uphold human rights at least in the same way as its own member states do.

The second reason for the EU’s accession to the ECHR is a purely legal one: Article 6.2 of the Treaty clearly says that the EU “shall accede”[12]; it does not say “may accede” or “can accede”. Therefore, the accession is not a mere option, but a legal command and a valid legal obligation, even though Article 6.2 subjects the accession to the safeguarding of EU law. This means that EU law should be interpreted, as much as possible, in a way that might accommodate the accession rather than in a manner that would create insurmountable obstacles thereto.

Moreover, from the perspective of human rights, I think that it is neither advisable nor possible in the longer run to deprive the European citizens of the right to apply to the ECtHR and complain of acts and omissions pertaining to situations attributable to EU policies and practices affecting their rights.

Finally, one should stress that the present draft agreement is very favourable to EU since the latter may benefit from a series of special mechanisms, such as the co-respondent mechanism[13], or the principle of the previous involvement of the 307Luxembourg Court[14]. In my view, it is unlikely that non-EU states which are parties to the ECHR would go beyond these special mechanisms in future negotiations, if any.

Before I conclude, allow me to make the following point: We have been discussing the issue of the accession of the EU to the ECHR for more than 40 years in all possible fora: the Council of Europe, the ECtHR, the CJEU, the Commission, academia, national human rights institutions. While this discussion is still on-going and the accession is still expected, a number of theories and case-law doctrines have been developed by the national judiciaries and the ECtHR, in particular the so-called Bosphorus doctrine[15], in respect of the scope of scrutiny the latter may apply on EU acts. However, if the present accession attempt fails again, the conclusion can only be that the EU accession will not take place in the foreseeable future. This will increase the distance between the EU legal order and the legal order of the states parties to the ECHR. The recent tendency identified by Professor Johan Callewaert[16], whereby the Luxembourg Court treats the ECHR as an optional factor in deciding cases, will further widen this distance. In these circumstances, it would be only logical for the Strasbourg Court to revise or reconsider the Bosphorus doctrine. Professor Vassilis Pergantis, who analysed some time ago the related case-law of the ECtHR, showed that the Strasbourg Court’s approach under the Bosphorus doctrine may vary in practice[17]. If the accession fails, I can only guess that a change of approach is to be expected. However, such a change will create uncertainty for applicants and states parties alike, and could expose the EU to an indirect control by the Strasbourg Court without the benefit of the specific mechanisms which the draft agreement foresees.

In my view, it is crucial that the EU proceeds now with the next steps, namely, seek a new Opinion from the CJEU and inform the Committee of Ministers of the Council of Europe of the way the CFSP problem has been resolved internally within the EU.

I conclude by noting that discussions like the one leading to this special issue will contribute to a better understanding of the EU-specific mechanisms and their future operation –hopefully in the not-too-distant future.

[*] The opinions expressed in this note are those of the author.

[1] Article 6.2, Consolidated Version of the Treaty on European Union [2012] OJ C326/13.

[2] European Commission, “Memorandum Concerning the Accession of the European Communities to the Convention for the Protection of Human Rights and Fundamental Freedoms” (1979) COM/1979/0210 final.

[3] Opinion 2/94, Accession by the Community to the European Convention for the Protection of Human Rights and Fundamental Freedoms [1996], ECLI:EU:C:1996:140.

[4] See note 1.

[5] Council of Europe, “Fifth Negotiation Meeting Between the CDDH Ad Hoc Negotiation Group and the European Commission on the Accession of the European Union to the European Convention on Human Rights” (10 June 2013) 47+1(2013)008rev2.

[6] The Russian Federation was at that time a member state of the Council of Europe. It was expelled from the Organisation on 16 March 2022, after the Russian aggression against Ukraine.

[7] Opinion 2/13, Accession of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms [2014], ECLI:EU:C:2014:2454.

[8] Council of Europe, “Final Consolidated Version of the Draft Accession Instruments” (17 March 2023) 46+1(2023)36.

[9] Ibid., Explanatory Report, § 27; Council of Europe, “18th Meeting of the CDDH Ad Hoc Negotiation Group (‘46+1’) on the Accession of the European Union to the European Convention on Human Rights – Report to the CDDH” (8 March 2023) 46+1(2023)33, § 8 (Basket 4).

[10] Joined Cases C-29/22 P and C-44/22 P, KS and KD v. Council of the European Union and Others [2024], ECLI:EU:C:2024:725.

[11] Demi Lee Franklin/Vassilis P. Tzevelekos, The 2023 Draft Agreement on the EU Accession to the ECHR: Possible “Gaps” and “Cracks” in the Co-respondent Mechanism and the Implications for the Bosphorus Doctrine, 9(2) European Papers 2024. 745.

[12] See note 1.

[13] Article 3, 46+1(2023)36, note 8.

[14] Article 3(7), 46+1(2023)36, note 8.

[15] ECtHR, Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland [GC], App. No. 45036/98, 30 June 2005, §§ 152-158.

[16] Johan Callewaert, L’Adhésion de l’Union européenne à la Convention européenne des droits de l’homme: une réponse logique à l’optionalité de la Convention européenne des droits de l’homme en droit de l’Union européenne, 3 Revue trimestrielle des droits de l’homme 2025. 9.

[17] Vassilis Pergantis, Recalibrating the “Strict Obligations” Requirement of the Bosphorus Doctrine of Equivalent Protection: The Strasbourg Court vis-à-vis the EU Principle of Mutual Trust, 20(3) European Constitutional Law Review 2024. 392. See also in this respect: Vassilis P. Tzevelekos, The EU’s Accession to the ECHR: The Future of the Revised Draft Accession Agreement and a Call to End the Bosphorus Doctrine, 6(1) ECHR Law Review 2025. 1.