Brussels, 18/12/2014 (Agence Europe) - The Court of Justice of the EU (CJEU) formed the view that the draft agreement on the accession of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR, to which the 42 member states of the Council of Europe, including the 28 EU members, belong) is not compatible with the provisions in the treaty of the Union.
With this opinion, delivered in Thursday 18 December at the request of the European Commission, the Court was to determine whether the draft agreement between the Council of Europe and the EU contains conditions that preserve the specific characteristics of EU law and ensure that the accession of the EU to the ECHR (provided for in the Lisbon Treaty) affects neither its jurisdiction nor the powers of its institutions.
The Court said that this was not the case. In its opinion, it says firstly that that the accession of the EU as a contracting party to the ECHR would, like any other party, be subject to external control to ensure the observance of the rights and freedoms provided for by the ECHR. The EU and its institutions would thus be subject to the control mechanisms provided for by the ECHR and, in particular, to the decisions and judgments of the European Court of Human Rights (ECtHR) whereas the interpretation by the Court of Justice of a right recognised by the ECHR would not be binding on the ECtHR. The Court stated that that cannot be the case as regards the interpretation of EU law, including the Charter of Fundamental Rights (which has the same legal value as the treaties and which largely contains the rights recognised by the ECHR).
A further objection is that, insofar as the ECHR gives the contracting parties the power to lay down higher standards of protection than those guaranteed by the ECHR, the ECHR should be coordinated with the European Charter of Fundamental Rights. This is to ensure that the room for manoeuvre granted to the member states is limited to that which is necessary to ensure that the level of protection provided for by the Charter and the primacy, unity and effectiveness of EU law are not compromised. The Court finds that there is no provision in the draft agreement to ensure such coordination.
In more general terms, the court is critical of the approach of the draft agreement which is to treat the EU as a state and to give it a role identical in every respect to that of any other contracting party, specifically disregards the intrinsic nature of the EU, where the member states have transferred a large proportion of their powers to the EU. In particular, the ECHR “would require each member state to check that the other member states had observed fundamental rights, even though EU law imposes an obligation of mutual trust between those member states. In those circumstances, accession is liable to upset the underlying balance of the EU and undermine the autonomy of EU law”.
Further legal arguments are invoked to refuse the draft agreement, including the fact that, where the CJEU is not competent, the ECtHR would have exclusive judicial review of certain acts, actions or omissions on the part of the EU in the area of the CFSP, when the CFSP falls outside the ambit of judicial review by the Court. (FG)