Select Committee on European Union Sixth Report


PART 4: ACCESSION TO THE ECHR

INTRODUCTION

102.  The two main proposals on the table are, first, that the Charter should become a Bill of Rights for the European Union and, second, that the European Union should accede to the ECHR. These proposals are not necessarily exclusive of each other, though given the close relationship of their subject they fall to be considered together in any debate on the future of the Union.

103.  The Report of the Working Group has produced a clear, but limited, recommendation on the issue of accession to the ECHR. The Working Group construed its terms of reference narrowly and its Report has stressed that it is not for the Convention to decide whether the Union should accede to the ECHR but only to decide whether the Treaties should be amended to provide the power ("a constitutional authorisation") to accede. It would then be for the Council, by unanimity, to agree to accede. Agreement to accede would have to be preceded by agreement on the necessary technical modalities and also on the additional protocols of the ECHR to which the Union should accede.[50]

104.  Commissioner Vitorino, who chaired the Working Group, reported to the Convention Plenary that all members of the Group either strongly supported or were ready to give favourable consideration to a Treaty amendment creating a constitutional authorisation enabling the Union to accede to the ECHR. The Group also stressed that incorporation of the Charter and accession to the ECHR were not necessarily alternatives, but could be regarded as complementary steps to be taken in order to achieve full respect of fundamental rights by the Union. Incorporation and accession would lead to a situation analogous to that in Member States, which both protect fundamental rights and at the same time have subscribed to the external control of the Strasbourg Court.[51]

VIEWS OF WITNESSES

105.  The majority of witnesses favoured EU/EC accession to the ECHR. Liberty described accession by the Union to the ECHR as "the most important step that could come out of the work of the Working Group and the Convention, as it would ensure a uniform minimum level of protection across Europe irrespective of the legal actor (ie Member State or EU institution) involved" (p 83). Some believed that accession to the ECHR should have priority over incorporating the Charter into the Treaties. The CBI saw EU accession to the ECHR as a better way to improve human rights protection in the Union than changing the status of the Charter. "This would make the EU institutions accountable for considering human rights (or face an adverse judgment of the Strasbourg Court), but avoid the problems of conflicting with the current structure of human rights protection or expanding the judicial competence of the ECJ" (p 62).

106.  But not all witnesses thought that accession was an essential step. Professor Toth contended that if the Charter were incorporated into a new Constitution, accession of the EU or the EC to the ECHR would be "neither necessary nor even desirable" (pp 114-115). But most witnesses supported EU/EC accession to the ECHR and saw it going hand in hand with strengthening the Charter and providing a number of clearly identifiable benefits for the Union and its citizens.

107.  Baroness Scotland described the Government's position on the question of accession: "we are neither for nor against accession at this moment. We can see the case for it but equally we can see problems that could make accession do more harm than good" (Q 240). The Government "are not convinced that accession is vital" (Q 259). They were, however, actively considering whether there should be accession and, if so, in which form (Q 249).

THE BENEFITS OF ACCESSION

(I) INCORPORATION OF THE CHARTER IN NO WAY DIMINISHES THE IMPORTANCE OF ACCESSION TO THE ECHR

108.  Professors Schermers and Lawson, Faculty of Law at the University of Leiden, noted that virtually all continental States have included in their constitutions fundamental rights, which domestic authorities must respect. Statements of fundamental rights in national constitutions may differ from the ECHR. If an individual complains of a violation of his rights under a constitutional provision that does not have an equivalent in the ECHR, then he will have no further remedy if the domestic court rejects his complaint. If, on the other hand, the right alleged to have been violated also forms part of the ECHR, then an appeal to the European Court of Human Rights will be possible after exhaustion of the domestic remedies (p 95).

(II) SUBJECTING THE UNION, ITS INSTITUTIONS AND BODIES TO A SPECIALIST EXTERNAL ARBITER

109.  JUSTICE urged EU accession to the ECHR in order "to ensure the best possible protection of human rights within the Union". Accession would bring the EU institutions within a well established regional human rights system. By the acceptance of scrutiny by an independent court, the European Court of Human Rights, accession would ensure consistency in providing protection to a high standard of civil and political rights in Europe (p 79). Statewatch said that "it would reassure citizens (and national courts) that the Union is not 'above the law' as far as human rights are concerned, an assurance necessary in particular as the Union's competences expand well beyond economic integration to include security issues where human rights concerns are more frequent" (p 103). Accession would give citizens protection vis-à-vis acts of the Union analogous to that which they already enjoy vis-à-vis acts of Member States.

(III) UNIFYING EFFECT OF COMMON EXTERNAL CONTROL

110.  Accession of the European Union to the ECHR would result in all European legal orders being subject to the same supervision in relation to the protection of fundamental rights. Professors Schermers and Lawson considered that this would be advantageous to the unity of Europe. Any alternative to accession might appear to constitute a refusal of the Union to accept the general supervision which all European States have accepted. (para 6). The Working Group believed that accession would be a strong political signal for coherence between the Union and the "greater Europe".

(IV) REMOVING CONFLICTS AND INCONSISTENCIES

111.  There have, on occasion, been divergent interpretations of the ECHR by the Strasbourg Court and the Community Courts. Judge Fischbach said: "there is a probability that the Charter will generate a new dynamic and that there will be in the future far more requests for preliminary rulings in Luxembourg …. So you see the danger, the risk that there may be more and more divergency in the interpretation of the same Human Rights" (Q 199). Accession would remove the risk and strengthen Community law as a result (BEG pp 58-60). Merely incorporating the Charter including its ECHR based rights (read in accordance with Article 52(3)) would not achieve the same result because, Professor Arnull said, the Community Courts could get it wrong (Q 47). Accession would therefore increase legal certainty and would serve to strengthen the autonomy of both the Luxembourg and Strasbourg Courts.

(V) ENFORCING ECHR OBLIGATIONS

112.  EU measures are already to some extent subject to 'indirect review' in Strasbourg (Statewatch p 103). Accession would permit the EC/EU to defend itself directly before the Strasbourg Court. Judge Fischbach said that accession would enable the institutions of the Union to participate fully in Strasbourg proceedings in which Union law was at issue (Q 197). Liberty argued that it would be beneficial for the EC/EU to become a Contracting Party if only to enable it to represent the interests of the EC/EU (and its responsible institutions) directly in proceedings before the Strasbourg Court and to implement obligations under the ECHR by means of EC law rather than through the (sometimes inappropriate) medium of the respondent Member State(s) (p 86).

(VI) REMOVING AN APPARENT DOUBLE STANDARD

113.  Judge Fischbach referred to "a growing contradiction between the obligations which the Union seeks to place on certain third countries in connection with development aid or other association agreements and the absence of the external control and the external review of decisions of the Union itself". Moreover, it was not logical that ratification of the ECHR by candidate countries was a precondition for Union membership but the Union itself was not subject to such review and control (Q 197). JUSTICE said that accession would strengthen the EU's credibility in the human rights field (p 79). Contrariwise, as the Immigration Law Practitioners' Association (ILPA) and the Advice on Individual Rights in Europe (AIRE) Centre noted, accession would not preclude the Union from giving protection via the Charter to a greater range of rights than were protected under the ECHR. Nor would it preclude the Union from protecting traditional civil and political rights at a higher level than the ECHR's minimum level of protection (p 73).


50   Report of Working Group II. Doc. CONV 354/02, at page 13. Back

51   The European Convention. Summary report of the plenary session. Brussels, 28 and 29 October 2002. Doc. CONV 378/02. Back


 
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