333Considering the Execution of Judgments Against the EU and/or its Member States in Cases Involving EU Law After the EU Accession to the ECHR[*]

Zoë Bryanston-Cross

Deputy Head, Private Office of the President of the ECHR, Legal Advisor to the Committee of Ministers, Council of Europe

1. Introduction

Execution of the judgments of the European Court of Human Rights (ECtHR, the Court) against the European Union (EU) following its accession to the European Convention of Human Rights (ECHR, the Convention) is possibly one of the most niche of niche topics. Nonetheless, just as for the supervision mechanism of the Convention generally, it bears and deserves scrutiny and interest. That a court’s judgments are respected is an essential element of any justice system. Moreover, the whole reason for the EU to accede to the Convention is to ensure that it comes within the effective human rights protection of the Court and the Committee of Ministers.

The accession negotiations and the Draft Accession Agreement (DAA)[1] that came out of them focus very heavily, so far as they concern the execution process, on the voting rules for the Committee of Ministers meetings, and how they would work once the EU had acceded[2]. They did not touch on the general functioning of the supervision process, which remains more or less unchanged. It is understandable that the voting rules were the focus of the DAA in the sense that the rules of the Committee of Ministers concerning voting articulate in a very precise, and indeed 334numerical way, one of the preoccupations of States in the accession process. That was, how accession can be managed in a way that avoids the functioning of the Committee of Ministers being undermined by the EU and its Member States voting as a block[3]. Addressing that concern through adjusting the voting majorities was a key part of ensuring the acceptability of the DAA.

Unlike proceedings before the Court, which give a voice mainly to the parties to the proceedings, the supervision process of the execution of ECtHR judgments is of a wider nature. It is the moment in the Convention proceedings when the collective view of the Member States of the Council of Europe is expressed, when they (on the occasions with which this paper is concerned, they are 46+1) sit together to examine whether their peers have met their voluntarily assumed obligations under the Convention. Whilst the executive body of the Council of Europe, the Committee of Ministers, in its supervision function is carrying out a quasi-legal role[4], nonetheless, it cannot be avoided that the dynamics of that body have a political aspect.

This is not to advance an argument that it should not be the case. The political input and democratic accountability that the Committee of Ministers brings to the mechanism through the supervision process is a powerful and necessary element inside the Convention system. It is mentioned rather to underscore that what happens in the Committee of Ministers Human Rights meetings is influenced by and has an influence on, outside political factors. The importance of getting the rules right for a situation where the EU has acceded is of evident importance.

This paper reviews in Section 2 the principles and procedures underpinning the supervision process and considers how they could be applied in the future in cases where the EU is a respondent party. Section 3 reviews cases examined by the Committee of Ministers applying those principles and procedures. It underscores the variety of factual circumstances already addressed within the supervision process, and reflects on the flexibility of the various procedures. Section 4 concludes that whilst the supervision of some cases where the EU is a respondent may pose challenges and additional complexities, overall, with the changes proposed by the DAA, the supervision mechanism will be well placed to absorb the processing of such cases with its existing tools and established acquis.

2. How the Supervision Mechanism under Article 46 of the Convention works

The DAA makes one change to the legal provision at the basis of the supervision mechanism, which is found in Article 46 of the Convention. That change is to specify how the majority voting requirements are modified in cases to which the EU is 335a party[5]. Those voting requirements which are changed are set out in an Annex to the DAA. This is important so far as it goes. However, recourse to voting is rare compared with the overall number of cases that the Committee of Ministers examines, many of which are dealt with under a written procedure. Indeed, as the Explanatory Report to the DAA indicates, the adjustments to the voting procedures should not be seen as a departure from the established practice that decisions in the Committee of Ministers are adopted by consensus with a formal vote only exceptionally being taken[6].

The part of Article 46 that gives foundation to the supervision process was not altered by the DAA. It provides that, “The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties”[7]. As the EU will become a High Contracting Party to the Convention, its commitment to abide by the final judgments of the Court fits neatly into the wording of Article 46, and thus the established supervision mechanism, without particular difficulties. That goes too for the next part of Article 46 which provides that, “The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution”[8].

This is the limit of what Article 46 itself says about States’ voluntarily assumed obligation to abide by the Court’s judgments. However, this basic text has been interpreted and applied by the Committee of Ministers and the ECtHR over the years as containing within it a set of legal principles which govern the supervision process[9]. Before examining those and then considering what they might ultimately mean when applied to a ECtHR judgment finding a violation against the EU, it is worth recalling that, as Article 46 makes clear, all the Court’s judgments where a violation is found are binding; not just those in which the Court has made an indication under Article 46.

Separate from the obligation to pay the just satisfaction, which is found in Article 41 of the Convention, the obligation to abide by the Court’s judgments under Article 46 contains several elements derived from principles of reparation in international law[10]. These obligations are articulated in the Committee of Ministers 336Rules[11]. They are to take individual measures in order to restore the applicant to the situation they would have been in had the violation not occurred, where it is possible and proportionate to do so (restitution); and to take general measures (to stop ongoing violations and/or prevent similar ones). To understand what measures might be necessary or appropriate to take in any particular case to achieve those ends, a close read of the judgment concerned is required.

One can find in the Committee of Ministers acquis[12] and the Court’s case law[13] indicators of how these obligations should be interpreted. Those are that the measures taken should be feasible, timely, adequate and sufficient to achieve maximum possible reparation[14]. They should also be taken in good faith and in line with the “conclusions and spirit” of the Court’s judgment[15]. The other guiding principle which underpins the whole system and has a procedural as well as substantive aspect is importantly the choice of means – it is for the State concerned to choose the appropriate measures to execute the judgment[16].

The DAA did not affect nor address any of these substantive principles. Therefore, it should be expected that the measures required to implement any judgment finding a violation by the EU would be examined through the same lens and applying the same acquis as the Committee of Ministers currently uses.

Nor (with the exception of the voting majorities) did the DAA alter any of the procedures which the Committee of Ministers has put in place over the years to ensure the good functioning of the supervision mechanism. For example, for reasons of efficiency, the Committee of Ministers has established a priority system by which its cases are examined. This is called the “twin-track” procedure[17]. The procedure works on the basis that all cases go into the “standard” supervision track, unless they meet particular criteria and should be supervised under an “enhanced” supervision track. The criteria for classifying a case in “Enhanced” are that it is an inter-state case, a complex case, or a case revealing structural problems. Or, it is a case with urgent individual measures[18]. The standard procedure is an entirely written procedure. Not all cases under the enhanced procedure are dealt with under a written process, but many are. It can be expected that cases against the EU alone or as a co-respondent would be treated within these existing procedures.

337Equally, it is worth underlining that many judgments require no particular action. It is quite often the case that case facts occurred many years prior –by the time the case has gone up the domestic system and to Strasbourg. Often, the problematic situation at the root of the judgments is no longer outstanding. The only issue is payment of just satisfaction (if any), and the case can be closed.

The point of interest from the perspective of the DAA is twofold. In the first place, many cases pass through the supervision procedures without being subject to any of the rules on voting majorities; thus, underscoring the limited impact of the changes in the DAA to the supervision mechanism. The second is that the existing system will continue to function in the same manner after accession, and this gives a stable basis for anticipating the substantive approach likely to be applied in cases that may be brought against the EU. Such an approach is in line with the stated objectives in the Explanatory Report to the DAA that the EU should as a matter of principle accede to the Convention on an equal footing with the other High Contracting Parties, that is with the same rights and obligations, and with adaptions only when necessary[19].

3. How might these principles and process be applied where the EU is the Sole Respondent?

To understand how these principles and processes might be applied in cases in which the EU is a respondent, it is helpful to consider what types of cases may come into the supervision procedure and how, hypothetically, they might be treated. It is relatively straightforward to anticipate some types of cases. Such cases might arise from the actions of EU institutions and therefore the EU alone; one example might be on staff matters.

Pursuant to Article 270 of the Treaty on the Functioning of the European Union (TFEU)[20], the General Court has jurisdiction to determine disputes between the EU and its civil servants (previously this competence was attributed to the EU Civil Service Tribunal, which ceased to exist in 2016). These disputes may concern pay, recruitment, promotion or social security entitlements regarding invalidity, age and family allowances. Judgments adopted by the General Court can be appealed to the Court of Justice on points of law.

After accession, complaints once exhausted before the EU bodies, could be brought to the ECtHR related to various rights guaranteed by the Convention, notably fair trial guarantees enshrined in Article 6 of the Convention, private and family life or property rights. For instance, in the judgment of the Grand Chamber of the 338Court of Justice of 26 March 2020 in Simpson v. Council[21], complaints were raised relating to the procedure for the appointment of a judge to the former EU Civil Service Tribunal and whether this tribunal could therefore be considered as a “tribunal established by law”.

In a similar scenario, one could also envisage an application brought to the ECtHR by a former employee or judge of the CJEU that would complain of a breach of the impartiality requirement where the CJEU acted both as the employer taking the impugned decision and the judge reviewing that decision[22]. Indeed, this would appear to be the type of case envisaged by the framers of the DAA, who anticipated that the actions of EU institutions could be challenged under the Convention.

It is possible to consider that payment of any award of just satisfaction (if any) in such a case would likely –hopefully– be straightforward. Individual measures too would look rather similar to those that are expected by the Committee of Ministers acquis in similar cases, or those where the impartiality of a court was at issue in a Member State. Typically, in such cases and in line with its Recommendations and Guidelines, the Committee of Ministers expects that the respondent State will provide a mechanism for reopening of the case so that the applicant can have the matter reheard before an impartial body. If the matter was not a one-off, and the provisions which allowed for proceedings to go ahead in a way that was not impartial were still in force, then these might have to be changed[23].

It could be anticipated that similarly straightforward cases might be brought, for example, concerning access to documents. Article 42 of the Charter of Fundamental Rights of the European Union guarantees to any citizen of the Union and any natural or legal person residing or having its registered office in a Member State a right of access to documents of the EU institutions, bodies, offices and agencies, whatever their medium [see also Article 15(3) TFEU][24]. This right has been made enforceable in several areas through secondary legislation[25]. Under EU law several grounds justify 339a refusal to access certain documents, notably public security, defence and military matters, international relations, the financial, monetary or economic policy of the EU or a Member State, or the privacy and integrity of the individual, in particular in accordance with legislation regarding the protection of personal data. Applications could therefore be lodged against the European Union to complain, under Article 10 of the Convention[26] of the refusal by an EU institution or body, confirmed by the CJEU, to access certain documents or information[27]. Again, the anticipated measures to redress this would seem to be relatively straightforward. Applicants should be able to have their request for information reconsidered taking into account the Strasbourg Court’s judgment. Further measures may be required should the refusal of access to information have stemmed from a systematic or structural problem[28].

Matters, however, become more complex where some level or urgency is added, and/or where there may be a layering of responsibility between the EU and a Member State, which brings us to the co-respondent mechanism.

4. The Co-respondent Mechanism

This mechanism, created in the DAA, provides that the Court in its judgment shall hold the EU and a Member State as respondent and co-respondent, jointly responsible for that violation[29]. For cases which fall into this category, once the case arrives at the Committee of Ministers, two High Contracting Parties would be responsible, together, for taking the necessary measures to implement the judgment. As the Explanatory Report indicates, the Court in its judgment shall hold the respondent and the co-respondents jointly responsible for any alleged violation and communicate its judgment to the parties[30]. As a matter of law, the Court’s conclusions including those finding joint responsibility cannot be revisited by the Committee of Ministers, as its mandate under Article 46(2) of the ECtHR is only to supervise the execution of judgments[31]. It should also be recalled that, as previously mentioned, the main principle underpinning the supervision procedure is that of the choice of means. Therefore, it would not be for the Committee of Ministers to allocate responsibility, at the enforcement stage, nor to delve into assessments of whether a party was responsible for a certain remedial measure. Any decision about who does what at 340the enforcement stage would be for the co-respondents concerned to arrive at. Moreover, the procedures at the supervision stage allow for flexibility. The question of who is responsible in law is not only outside the Committee of Ministers’ remit, but arguably less interesting to it than the practical matters of who will do what to remedy the human rights problem identified. It could be considered that there is a sort of parallel with matters of jurisdiction, which are often deeply argued, complex and contentious during the litigation before the ECtHR, but once decided, typically do not require any consideration at the execution phase.

In any event, to consider what elements may arise, it is instructive to look at an existing case with an EU law aspect, and use it to try and imagine how this might be supervised in an alternative scenario where the EU was also jointly liable under the co-respondent mechanism. Such examples can only be instructive because the EU accession to the Convention is fundamentally novel. There is no model for it inside, or even outside the Convention system. Therefore, any example situations will inevitably be limited in what they can offer by way of comparison. Nonetheless, despite or even because of the fact there is no model to turn to, an investigation of these imperfect examples merits some reflection[32].

In A.M.A. v. Netherlands[33], the Court considered that the authorities took an excessively narrow approach when excluding last-minute evidence without assessing its potential relevance in their final risk assessment of the applicant’s deportation to Bahrain. In the case itself, this approach was based on Article 40(4) of Directive 2013/32/EU where case law of the ECJ had clarified that the Directive should be interpreted in a manner corresponding to the later findings of the ECHR[34]. This judgment nonetheless provides a jumping off point for considering how such a case might play out where the respondent State and the EU were held jointly liable under the co-respondent mechanism by the Strasbourg Court for a violation found.

On arriving at the supervision phase, the question for the Committee of Ministers would be, who would do what to remedy the situation? Again, it is important to recall that the choice about that would lie with the respondents, who should present their conclusions in that regard (in the form of an action plan or report) to the Committee 341of Ministers. Any concerns raised by the Committee of Ministers would likely be oriented towards whether any measures have been taken and if they have been effective. It is not the role of the Committee of Ministers to identify who should take what action; the Committee of Ministers’ assessment is rather oriented towards a more practical focus, that is, the question of whether the measures proposed/taken by the respondents have achieved the desired results. If they have not, the Committee of Ministers’ role is to guide the respondents through asking them to review the situation and make another proposal. It does not appear that the Committee of Ministers need to be drawn into questions of legal responsibility as such, which remains in the first place for the respondents to choose, and in the second place on the abstract level from the Committee of Ministers’ pragmatic point of view.

In such a case, it would appear likely, based on the acquis of the Committee of Ministers, the situation to be one where the responsibility for remedying the individual violation, that is to say diplomatic efforts with the Bahrani authorities, would be undertaken by the respondent State concerned[35], whereas the remedy for the general measures would be more likely for the EU to address. It may be noted that, to some extent, this is not something completely new, as there are already examples of various cases where a change in EU law contributed to the adoption of general measures to prevent a similar violation that may arise from a structural or systematic problem[36].

Moreover, it is worth underlining that this situation of joint liability, whilst novel in the sense of concerning the EU as a legal entity, is not totally without precedent from other perspectives. For example, from the perspective of international law and so for the ECtHR and the Committee of Ministers, a respondent State is always liable for the violation of the Convention. However, many States are federal or contain countries or overseas entities with varying degrees of autonomy. Thus, the facts of the case may mean that the body at the root of the violation and the one often concerned 342with taking the steps to remedy the violation may not be exactly the same as the legal entity responsible in law at the international level.

The flexibility of the supervision mechanism means that, even if it is always for the respondent State as a whole to propose how the measures are to be taken and report at the level of the Committee of Ministers, regard can be given to the practicalities of a situation. That is to say that a respondent State can explain in its action plans that it is a local or other actor which needs to take the necessary actions. The Committee of Ministers is then able to react as it considers appropriate to this, including on whether this may present some complexities in achieving the desired results and therefore on what timescale it is reasonable to anticipate change.

Examples of cases of this type would include S. and Marper v. the United Kingdom[37], where the violation found concerned England, Wales and Northern Ireland, but the legal situation in Scotland was unaffected[38]. The violation found by the Court in that case concerned the indefinite retention of DNA of persons not convicted of any crime in those jurisdictions. In Scotland, such data could be deleted after a defined time-period of 3 years. The fact that one country in the United Kingdom had no particular involvement in the supervision process of course had no impact on the situation that the United Kingdom as a whole remained responsible before the Court and the Committee of Ministers. It may be noted that the judgment was implemented within a moderately reasonable time in England and Wales. The case, however, remains pending before the Committee of Ministers due to the fact that the legislation in Northern Ireland has not yet been modified.

A similar scenario can be found in the case of Corallo v. the Netherlands[39], in which the Court found a violation concerning the poor prison conditions on the Caribbean island of Sint Maarten. The authorities of Sint Maarten have and are taking various steps to improve the prison conditions there; the case remains pending against the Netherlands.

Equally, and perhaps with a slightly closer parallel to the co-respondent mechanism at first sight, in the sense that there are two respondent entities, are circumstances where the Court has found violations against two or more States such as in M.S.S. v. Belgium and Greece[40], or Rantsev v. Cyprus and Russia[41]. At least in the latter case, co-ordination between the respondent States was required in relation to the investigation pursued under the individual measures, and that co-ordination 343occurred[42]. It was also possible for the Committee of Ministers to close supervision against one respondent having taken the measures which it should take, but leave the case pending against the other respondent State where measures were still outstanding[43]. In that vein it may also be noted that it is possible for the Committee of Ministers to take a decision to close its supervision of part of a case, for example the individual measures, or the general measures, leaving only the remainder pending[44]. At the same time, as a matter of procedure the case itself will remain pending on the Committee of Ministers’ “docket” until all the measures are taken, albeit a closer examination of the documents in the case reveals that the Committee of Ministers has satisfied itself that some issues no longer require supervision, whilst others still do. This flexibility also allows the Committee of Ministers to supervise the process in a pragmatic way under the headline of joint responsibility. Like unpacking a suitcase, which retains the same external form, whilst the items inside are being removed. Once emptied, or fully implemented, the case can finally be closed up and put away.

Another example of a situation where the various stakeholders may be involved in the execution process, is where local authorities have a particular role. This was an element also identified in the Rejkyavík Declaration as important[45]. Take, for example, the case of Yordanova and Others v. Bulgaria[46], which concerned the district mayor’s plan to evict Roma from a settlement situated on municipal land without proposals for rehousing. For the purposes of ensuring respect for the judgment, it is of particular importance that the local municipality takes the necessary steps to prevent the repeat of such violations. The Committee of Ministers has noted co-operation with the Congress of Local and Regional Authorities of the Council of Europe to that end[47].

344Nonetheless, if the DAA is adopted and cases where the EU and a respondent State are held jointly liable for a violation by the Court eventually arrive at the Committee of Ministers for supervision of execution, these will be a novelty for the system which will inevitably pose some new challenges. That said, given the variety of factual circumstances already seen and treated in the supervision process: the manner in which the system works, with its focus on practical resolution of human rights problems; the fact that the choice of measures is always for the respondent; as well as the procedural flexibility within the supervision mechanism, it does not seem likely that this novelty will pose insurmountable complexities at the supervision stage. The allocation of responsibility between the EU and its Member States fixed by the Court in its judgment cannot be examined or called into question by the Committee of Ministers. The issue for the respondents at the execution stage is rather how the practical tasks are allocated under this general legal umbrella.

5. The Voting Rules

Finally, it would be important to examine the area of the DAA which did modify certain rules applicable to the execution process, and those where the rules concerning the voting majorities needed to adopt certain decisions in the Committee of Ministers. At the same time, it should be noted that whilst the changes in the DAA changed the majority numbers for a vote to pass in some cases, they did not change anything about the underlying functionality of the rules as such. So, the provisions relating to when votes should be held, for example, are unchanged.

Albeit rarely applied, the voting majorities, in some sense underpin the functioning of the Committee of Ministers, reflecting as they do the ultimate means by which the members of the Committee of Ministers can express themselves. They are therefore important and the changes which came about are there for the reasons set out in paragraph 99 of the Explanatory Report, which is that in cases where the EU is a respondent or a co-respondent, it can command 27+1 votes, which would be sufficient for a majority in nearly all situations in the Committee of Ministers. Thus, it would have the potential to undermine the supervisory mechanism, so the need to identify another way forward was evident.

Readers of this part of the DAA may have found the part of the rule changes slightly complex. It is, indeed, difficult to understand the application of voting rules in the abstract. However, another reason for the apparent complexity here is that the decision points of the Committee of Ministers are understood as having different implications. Therefore, the agreed voting numbers are not the same for all types of decision. Moreover, different types of decisions also call for different majorities depending on how exceptional their use should be. To reflect these considerations, the changes made in the DAA do not adjust the numbers according to a repeat formula, but are adapted to the various concerns.

For example, it is possible for the Committee of Ministers to vote on a decision to close its supervision of a case. This is something that the respondent State or 345entity – in this scenario the EU – would consider desirable (it is assumed). Therefore, the majorities are arranged so that such a decision cannot be adopted by a majority consisting of the combined votes of the EU and its 27 Member States. Conversely, a decision to adopt an interim resolution, which is a type of particularly weighty decision taken in the supervision process, is identified as something which would usually not be viewed as desirable by a respondent State or entity[48]. Therefore, the majorities are arranged so that the EU and its Member States cannot block such a decision from being adopted in a case in which it is the respondent. In effect, the numbers needed for adoption of an interim resolution in a case against the EU are low[49].

As for adoption of an interim resolution, the same goes for exercising the particular powers given to the Committee of Ministers in the Convention under Article 46(3) and (4) to refer cases back to the Court for interpretation and failure to execute, respectively. These have especially high majorities, reflecting among other things the exceptional nature of a decision under those provisions. Again, the majorities available were adjusted to avert the EU from being able to prevent the Committee of Ministers from deciding to go ahead[50].

Once these broad ideas are understood, there is not much to be gained by delving into the voting calculations themselves. They are admittedly a bit complex, and it was perhaps a certain level of uncertainty that led the framers of the DAA to add a clause at the end of the draft Rule 18 indicating that the High Contracting Parties should review the application of the new rule after 10 years[51]. This could seem at first glance to be quite a lengthy period, but given: the amount of time and the odds after the DAA enters into force that it may take for a “suitable” case to find its way up a domestic or EU system; to then be examined by the Strasbourg Court; that a violation would be found and so the case be transmitted to the Committee of Ministers; and that the case would be among the small minority on which a vote may at some stage be taken, 10 years starts to look like an optimistic time period in which to be able to evaluate any meaningful practice that might emerge. On the other hand, a review is always possible, even if there is not much to say. The option always remains to return to the matter at a later date if needs be.

6. Conclusion

The supervision mechanism operated by the Committee of Ministers is often criticised and should not be immune from challenge. Notwithstanding, some elements 346have always generally worked efficiently, such as the payment of just satisfaction, often overlooked as an important element by jurists, but one that is rightly important for applicants. Other aspects have raised more justified concerns, including the length of time taken to enforce judgments and the failure to tackle particularly long-standing issues, or to find a means to address the most political of cases. The system was reformed in 2010 in the context of the Interlaken process in a manner which simplified case processing and established a priority treatment of cases. Broadly speaking, this reform produced positive effects with a drop from around 11,000 pending cases in 2012, to around 4,000 today[52]. Moreover, changes linked to the reforms increased the clarity in the presentation of the cases pending supervision, whose progress became easier to follow. This resulted in at least two things, one was an improved understanding of the legal principles applied in the procedure, and the other was significantly increased engagement from civil society, and other actors such as international organisations[53]. The 2010 reforms also gave the Committee of Ministers more tools, and it has used the exceptional referral mechanism under Article 46(4) twice to date[54]. The Grand Chamber of the Court took the opportunity in the first case which was referred to it, Ilgar Mammadov v. Azerbaijan[55], to articulate and consolidate at the level of the Grand Chamber the legal principles that the Committee of Ministers has applied over the years, also emphasising the Committee of Ministers’ acquis on execution built up over many years. Steps to further the efficiency of the Committee of Ministers’ work have also been taken post-Reykjavik, which called for more political support to the process. One outcome was the establishment of an Execution Co-ordinators Network, in June 2024, intended to enable Member States to support each other in the process of executing judgments of the European Court[56].

All this is to underscore that, whilst bringing the EU into this supervision mechanism will generate undeniable novelties and new challenges, it will also occur at a time when the supervision mechanism is relatively mature and comprehensive, with established and efficient ways of working. This will bring important advantages 347in ensuring the supervision of the judgments against the EU. Moreover, as identified, the novelties of bringing a supranational actor into the mechanism remain somewhat at the level of legal abstraction without necessarily having much impact on the practical or procedural matters related to remedying human rights problems.

That said, there are cases within the supervision mechanism which have been pending for some years. For States to select and ensure that measures are taken to enforce judgments is not necessarily an easy task. It is sometimes said that judgments are difficult to implement when they are political, expensive, complex or, in a worst-case scenario, all three[57]. Judgments against the EU alone or as a co-respondent risk falling into at least the complex scenario. Maybe not expensive, but potentially so, and indeed potentially political. Slowness of execution will almost undoubtedly be an issue, if only because the EU is a large organisation, which tends to require internal consensus before moving forward. That said, it is a rules-based entity, so it may be that simply following the rules does not pose fundamental challenges. Moreover, as identified, it arrives at a mature and established system, replete with expertise and previous examples of how to respond to the Court’s judgments.

Overall, the DAA appears to have done what was intended from the perspective of ensuring the EU is brought into a system of human rights protection on an equal footing with other High Contracting Parties. Naturally, it remains to be seen how this will function in practice. With the recent request for an opinion of the Court of Justice pursuant to Article 218(11) TFEU[58] in relation to the draft agreement providing for the accession of the EU to the ECHR[59], perhaps the process is moving into its final chapter.

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

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

[2] Article 8(4) and (5) of the DAA [46+1(2023)36, note 2] concern the supervisory mechanism and only refer to the adjustment of the voting majorities in certain circumstances.

[3] 46+1(2023)36, note 2, Explanatory Report, § 97.

[4] ECtHR, Ilgar Mammadov v. Azerbaijan [GC, proceedings under Article 46(4) ECHR], App. No. 15172/13, 29 May 2019, § 161.

[5] Article 8(5), 46+1(2023)36, note 2.

[6] 46+1(2023)36, note 2, Explanatory Report, § 98.

[7] Article 46(1) ECHR.

[8] Article 46(2) ECHR.

[9] See the Committee of Ministers, “Rules of the Committee of Ministers for the supervision of the execution of judgments and of the terms of friendly settlements”, adopted by the Committee of Ministers on 10 May 2006 at the 964th meeting of the Ministers’ Deputies and amended on 18 January 2017 at the 1275th meeting of the Ministers’ Deputies and on 6 July 2022 at the 1439th meeting of the Ministers’ Deputies. See also Ilgar Mammadov, note 4, §§ 147-156.

[10] Ilgar Mammadov, note 4, §§ 147-156.

[11] Rules of the Committee of Ministers, note 9.

[12] Ilgar Mammadov, note 4, § 163.

[13] Ibid., §§ 147-156.

[14] Ibid., § 155.

[15] Ibid., §§ 149-153.

[16] Ibid., § 148.

[17] See, Committee of Ministers, “Supervision of the execution of judgments and decisions of the European Court of Human Rights: Implementation of the Interlaken Action Plan – Modalities for a twin-track supervision system” (6 September 2010) CM/Inf/DH(2010)37.

[18] Ibid., § 8.

[19] 46+1(2023)36, note 2, Explanatory Report, § 7.

[20] Article 270 TFEU (ex Article 236 TEC), Consolidated Version of the Treaty on the Functioning of the European Union [2012] OJ C326/47 (TFEU), reading: “The Court of Justice of the European Union shall have jurisdiction in any dispute between the Union and its servants within the limits and under the conditions laid down in the Staff Regulations of Officials and the Conditions of Employment of other servants of the Union”.

[21] CJEU, Erik Simpson and HG v. Council of the European Union and European Commission, C-542/18 RX-II and C-543/18 RX-II, 26 March 2020, ECLI: EU:C:2020:232.

[22] Kieran Bradley, Appointment and Dis-Appointment at the CJEU: Part I – The FV/Simpson Litigation, 20(1) The Law and Practice of International Courts and Tribunals 2021. 150.

[23] See, for example, Committee of Ministers, Andri Ástráðsson v. Iceland (9 March 2022) CM/ResDH(2022)48.

[24] Article 15(3), TFEU, note 20, reading: “Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, shall have a right of access to documents of the Union institutions, bodies, offices and agencies, whatever their medium, subject to the principles and the conditions to be defined in accordance with this paragraph […]”.

[25] E.g. Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information and repealing Council Directive 90/313/EEC; Regulation (EC) No. 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents.

[26] ECtHR, Magyar Helsinki Bizottság v. Hungary [GC], App. No. 18030/11, 8 November 2016.

[27] E.g., General Court, Agrofert v. Parliament, T-174/21, 28 September 2022, ECLI:EU:T:2022:586 (judgment not yet final) or General Court, Pollinis France v. Commission, T-371/20 and T-554/20, 14 September 2022, ECLI:EU:T:2022:556.

[28] See, for example, Committee of Ministers, Saure (No. 2) v. Germany (14 March 2024) CM/ResDH(2024)31 (final resolution).

[29] Article 3(8), 46+1(2023)36, note 2.

[30] 46+1(2023)36, note 2, Explanatory Report, § 71.

[31] Article 46(2) of the ECtHR, reading: “The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution”.

[32] See Jörg Polakiewicz/Irene Suominen-Picht, A Council of Europe Perspective on the European Union’s Accession to the European Convention on Human Rights, 9(2) European Papers 2024. 729, 731-734. The authors note that, during the negotiations, it was underlined that, had the mechanism already existed, the cases which would certainly have required its application would have been: ECtHR, Matthews v. the United Kingdom [GC], App. No. 24833/94, 18 February 1999; ECtHR, Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland [GC], App. No. 45036/98, 30 June 2005; and ECtHR, Cooperatieve Producentenorganisatie van de Nederlandse Kokkelvisserij U.A. v. the Netherlands [dec.], App. No. 13645/05, 20 January 2009.

[33] ECtHR, A.M.A. v. the Netherlands, App. No. 23048/19, 24 October 2023.

[34] See ibid., §§ 45 and 78, and CJEU, XY v. Bundesamt für Fremdenwesen und Asyl, C-18/20, 9 September 2021, ECLI:EU:C:2021:710.

[35] See also Committee of Ministers, DH-DD(2024)509, 6 May 2024, containing the “Action Plan of the Government of the Kingdom of the Netherlands on the implementation of the judgment of the Court concerning Application No. 23048/19” on A.M.A., note 33.

[36] See ECtHR, Kotilainen and Others v. Finland, App. No. 62439/12, 17 September 2020. The case concerned the lack of police compliance with their duty of diligence on account of their failure to preventively confiscate a gun from a student whose internet postings prior to committing school killings cast doubt on his fitness to safely possess a firearm. Among other elements, the authorities indicated that, in 2019, the EU Directive on Control of the Acquisition and Possession of Weapons was implemented and the Firearms Act modified accordingly on the national level. Committee of Ministers, Kotilainen and Others v. Finland (8 December 2021) CM/ResDH(2021)364 [final resolution, citing DH-DD(2021)639]. Also, ECtHR, Vizgirda v. Slovenia (App. No. 59868/08, 28 August 2018), where the Criminal Procedure Act was amended to implement Directive 2012/29/EU of the European Parliament and Council for establishing minimum standards on the rights, support and protection of victims of crime. Committee of Ministers, Vizgirda v. Slovenia (14 December 2022) CM/ResDH(2022)423 [final resolution, citing DH-DD(2022)1148].

[37] ECtHR, S. and Marper v. the United Kingdom [GC], App. Nos. 30562/04 and 30566/04, 4 December 2008.

[38] Ibid., § 109.

[39] ECtHR, Corallo v. the Netherlands, App. No. 29593/17, 9 October 2018.

[40] ECtHR, M.S.S. v. Belgium and Greece [GC], App. No. 30696/09, 21 January 2011.

[41] ECtHR, Rantsev v. Cyprus and Russia, App. No. 25965/04, 7 January 2010.

[42] Committee of Ministers, DH-DD(2014)1403, 19 November 2014. The Cypriot authorities submitted information demonstrating their co-operation with the Russian authorities throughout the reopened investigations.

[43] The Committee of Ministers closed its supervision of M.S.S. v. Belgium and Greece, against Belgium in 2014 and against Greece in 2025. On Belgium, Committee of Ministers, M.S.S. v. Belgium and Greece (4 December 2014) CM/ResDH(2014)272 and, on Greece, Committee of Ministers, M.S.S. v. Belgium and Greece (12 June 2025) CM/ResDH(2025)132.

[44] Moreover, because the Committee’s focus is on the resolution of human rights problems, it is able to close the supervision of a case where the just satisfaction has been paid, and the individual measures (if any) have been taken. The general measures will continue to be supervised by the Committee in another “lead” case.

[45] See Annex IV of the Rejkyavík Declaration. Council of Europe, “Reykjavík Declaration: United Around Our Values”, adopted at the 4th Summit of Heads of State and Government, Reykjavík (16-17 May 2023).

[46] ECtHR, Yordanova and Others v. Bulgaria, App. No. 25446/06, 24 April 2012.

[47] Committee of Ministers, Yordanova and Others v. Bulgaria (5 December 2024) CM/Del/Dec(2024)1514/H46-14, § 8 and CM/Notes/1514/H46-14.

[48] Notwithstanding that it is in fact intended to be a neutral instrument under Rule 16 of the Rules of the Committee of Ministers, note 9. Nonetheless, they can include criticism and as they have a certain prominence, States can be wary of their adoption.

[49] Rule 18(3), Appendix 3 of the DAA, 46+1(2023)36, note 2.

[50] Ibid., Rule 18(2).

[51] Ibid., Rule 18(6).

[52] See Committee of Ministers, “Supervision of the Execution of Judgments and Decisions of the European Court of Human Rights”, 18th Annual Report, 2024, Chapter V (“Statistics about Member States”), Section D (“Pending cases”).

[53] Ibid., Chapter VI (“Statistics on the Supervision Process”), Section D (“Contributions from Civil Society Organisations and National Human Rights Institutions”).

[54] See Ilgar Mammadov, note 4, and ECtHR, Kavala v. Turkiye [GC, proceedings under Article 46(4) ECHR], App. No. 28749/18, 11 July 2022.

[55] Ilgar Mammadov, note 4.

[56] Committee of Ministers, “Securing the long-term effectiveness of the European Convention on Human Rights – Enhancing the tools available to the Committee of Ministers in the supervision of the execution of ECtHR judgments” (29 November 2023) CM/Del/Dec(2024)1488/4.4.

[57] Observation attributable to Christos Giakomopoulos, former Director General of DG1 at the Council of Europe.

[58] Article 218(11), TFEU, note 20.

[59] European Commission, “Commission Decision on a request for an opinion of the Court of Justice pursuant to Article 218(11)TFEU in relation to the draft agreement providing for the accession of the European Union to the Convention for the Protection of Human Rights and Fundamental Freedoms” (27 July 2025) C(2025)3950.