Select Committee on European Union Sixth Report


114.  Even if the case for accession were to be accepted by all Member States there would remain a number of major and difficult legal and political hurdles to overcome.


115.  The majority of witnesses supported EU, not simply EC, accession to the ECHR. Statewatch said: "Accession by the full Union is important because the internal security aspects of the Union Third Pillar raise obvious human rights issues and the external security aspects of the Second EU Pillar can fall within the scope of the ECHR in certain cases, for example where an EU force controlled part of the territory and/or administration of an area outside the EU" (p 104).[52] We agree. In principle it is desirable that all EU activities, whatever the Pillar, should be subject to the supervision of the ECHR. There should be no distinction between the Community and the Union as regards compliance with fundamental rights. Therefore accession should be by the EU. But this presupposes that the EU could, as a matter of international law, accede if there were a political decision to do so and raises a question as to the legal status of the Union, and in particular whether it has the requisite legal personality to accede to an international treaty.

116.  A separate Working Group was set up in the Convention to consider the question of the legal personality of the Union. The present position is that the Treaties expressly provide that the Community has legal personality (Article 281 TEC), as has Euratom (Article 184 EAEC). But there is no such provision in relation to the Union. It has been argued that the Union has, as a matter of international law, legal personality by virtue of certain actions it has power to take. However, the better view would seem to be that the Union does not have legal personality and that amendment of the Treaties would be needed to confer it.

117.  The Convention Working Group on legal personality supports the view that the Union should be explicitly given legal personality.[53] The Group's principal recommendation is threefold:

·  the European Union should explicitly be given legal personality;

·  that personality should replace the existing personalities of the Community and of Euratom;

·  there should be a single legal personality for the European Union.

118.  It would follow that the Union, as a legal person subject to international law, would be able to become a party to treaties and other international agreements (eg the ECHR), to sue and be sued, and to be a member of international organisations. There would also, the Working Group recognised, be possible implications for the "architecture" of the Union. The creation of a single legal personality for the Union would enable the different treaties on which the Union and Communities are now based to be merged into a single Treaty. The Group believed that to preserve in a single Treaty the current "Pillar" structure would be anachronistic. Conferring legal personality on the Union would not per se entail any amendment to the division of competences, either between the Union and the Member States or between the Union and the Community. The Working Group was, however, careful not to prejudge the outcome of the current discussions in the Convention, and in particular within the Working Group on External Relations.

119.  We support the conclusion of the Working Group that the EU should have legal personality. It should, as we have recommended above, be the Union that accedes to the ECHR. On the question whether the distinction between the Union and the Community should go and the three Pillars be collapsed into one, we note that a merger of the Union and the Community into one single legal entity would not necessarily imply that a single Community method had to be followed in each policy area. Inter-governmentalism, which characterises activity in both Second and Third Pillar areas, could remain notwithstanding fusion of the Treaties and of the Pillars. Whether such an outcome would be any more comprehensible or any easier to explain to an outsider is, however, highly debatable.


120.  Much technical work has already been done on the question of EU/EC accession to the ECHR. A Steering Committee of the Council of Europe has prepared a detailed report on the legal and technical issues to be resolved before any political decision could be taken.[54] The ECHR itself would need to be amended and this would require the consent of all Contracting Parties.

121.  A particular problem, not addressed in the Council of Europe's report but identified by the Government, is that of individual Member States' reservations from certain of the ECHR articles. Although all Member States are party to the ECHR it is permissible under Article 57 ECHR for contracting parties to make reservations when signing the Convention. Many States have also made declarations. Further, the ECHR allows States, in certain circumstances, to derogate from its provisions (eg Article 15—Derogation in time of emergency). A number of Member States have made reservations and declarations. Baroness Scotland asked: "How do you incorporate those reservations in relation to protocols and other articles of various Member States in such a way that you reflect what they have in fact agreed to? We have not at the moment come up with a way you can do that and therefore we are not for accession, we are not against accession. We simply pose certain questions as to how practically it could be done without doing violence to the Member States' reserved positions in various ways." (Q 223).

122.  We do not understand why, if the European Union were to accede to the Convention, the Member States could not themselves agree upon any qualifications or reservations upon accession. Since Union accession would be restricted to matters within Union competence it is not apparent why Union accession should affect Member States' reservations. This was put to the Minister. She replied: "I am not suggesting that it is impossible. What we say is that it is difficult and those issues would have to be overcome. So far no-one has so far found an efficient and effective way to overcome them. I am not suggesting that they cannot be overcome …. All I can say is that at the moment we do not see a clear way of how to do it" (Q 226).

123.  To assist our own understanding we have prepared a table setting out the reservations and significant declarations and derogations made by Member States. The table is printed in Appendix 3 to this Report. That table indicates that the reservations and the decisions not to ratify certain protocols are attributable to features of national law. These reservations and decisions would stay in place, even if the EU were to accede to the ECHR. If the EU were to consider accession to the ECHR, the Member States would have to agree on the reservations (if any) to be made by the Union. The EU would also have the right under Article 15 ECHR to make specific derogations. These, too, would have to be agreed by Member States. But any such reservations or derogations would apply only in relation to European Union law. There would be no need to include in the new EU reservations any national reservations that had no applicability to EU law. It is clear that further and detailed consideration needs to be given to this issue, not least to determine whether it is simply a political problem or whether there are genuine legal difficulties to overcome. Our present opinion is that the legal difficulties are overstated.


124.  Professor Toth argued forcefully that accession by the EU to the ECHR would endanger the autonomy of the Union's legal order by subjecting the ECJ to the control machinery established by the ECHR and, in particular, to the jurisdiction of the Strasbourg Court. This, he argued, would be incompatible with the role of the ECJ as the final interpreter of EU law and the supreme guardian of legality in the EU (p 114). Moreover, Strasbourg might find itself ruling on the division of competences between the EU and the Member States. This, too, would be incompatible with EU law (p 114).

125.  But Professor Toth's view was not shared by other witnesses, including the Government.[55] Further, the Convention Working Group concluded that accession by the Union to the ECHR posed no threat to the principle of autonomy of Union law or to the authority of the ECJ. As Judge Fischbach explained, the nature and content of the rights established by and protected under the ECHR would not change by the mere fact of being applied within EC law, whether with or without incorporation of the Charter. The Strasbourg Court "by virtue of the subsidiarity principle" was not allowed to interfere in the legal systems of Contracting Parties. Nor would it be allowed to interfere in the Union legal system. Strasbourg review would be restricted to assessing whether an EU measure was consistent with the ECHR. In making that assessment the Strasbourg Court would leave the Union a 'margin of appreciation' allowing special features of Community law to be taken into account. Where the EU measure was contrary to the ECHR, the Court would merely deliver a finding of a breach, but would not itself be able to annul or amend the measure in question or to tell the Union what measure to take to remedy the matter. The Union, like the Member States, would be able to decide, with no encroachment on its powers, how it would go about complying with the Strasbourg Court's judgment (Liberty p 86).

126.  We agree with the majority view. The autonomy of the Community legal order would not in our opinion be endangered by EU accession to the ECHR. The Strasbourg Court would have the last word on what ECHR rights mean and require, whether inside the Union or outside it. Strasbourg would be able to examine whether EU law and acts conformed with the ECHR. But the ECJ would remain the final judge on questions of EU law and the validity and lawfulness of Union acts.


127.  In the United Kingdom we have incorporated the ECHR into our domestic law, but that does not mean that the Strasbourg Court is the final court of appeal in these areas. Our courts are required under the Human Rights Act 1998 to take account of its decisions, but they are not obliged to follow them if, for whatever reason, it is thought that they ought not to be followed. On the other hand, UK courts, and all other Member States' courts are obliged to follow and apply Luxembourg decisions. So what, if the Union acceded to the ECHR, would be the relationship between the Strasbourg Court and the Luxembourg Court?

128.  Most witnesses took the view that the relationship of the Strasbourg Court to the Luxembourg Court would be the same as its relationship to the United Kingdom courts. Advocate General Jacobs said: "it would be the final court under international law whose decisions would be binding in the instant case on the European Union if it was a case involving the European Union, or on the United Kingdom if it was a case in the United Kingdom. However, its decision in terms of its general jurisprudential authority would be the same in Luxembourg as it would be in the United Kingdom. There would therefore be no change, I think, in the position of the Strasbourg Court in relation to United Kingdom courts." (Q 170). Similarly the Luxembourg Court would not be bound by the Strasbourg Court's decisions. Advocate General Jacobs added: "I think in practice the Luxembourg Court would be very concerned to follow the Strasbourg Court's decisions, just as I am sure the United Kingdom courts would be, but they would not be formally binding, they would be formally binding only under international law on the Union or the United Kingdom respectively" (Q 171).

129.  Professor Toth believed that the analogy was a false one. "The proper comparison to be drawn is not between the ECJ and the national Constitutional Courts (since they are not on the same level), but between the ECJ and the ECtHR. They are both supranational Courts of equal rank, status and calibre, standing at the apex of their respective supranational legal systems. Both Courts consist of equally highly qualified judges, representing not one national legal system but the legal systems of all the Members States and Contracting Parties. Both Courts use similar methods of Treaty interpretation and their decisions enjoy the same high respect and authority. Just as it would be inconceivable to subject the ECtHR to the jurisdiction of another international court (eg the International Court of Justice), it would be highly undesirable to subordinate the ECJ to an external court which could override/reverse its decisions. This would undoubtedly weaken the ECJ's authority in the eyes of the national courts and thereby undermine the coherence and unity of the whole EU legal order" (p 115).

130.  We take the view that the position of the ECJ would be analogous to that of national constitutional or supreme courts in relation to the Strasbourg Court. The ECJ would remain the final court on questions of European Union law; the Strasbourg Court would be the final court on questions of ECHR law. There would not be a conflict between them any more than there is a conflict between the House of Lords and the Strasbourg Court when interpreting the ECHR.


131.  EU accession to the ECHR plus incorporation of the Charter may give rise to practical problems of delay and costs. Under the domestic remedies rule, parties must have exhausted all their domestic remedies before the Strasbourg court will entertain their plea. As Professor Arnull pointed out, the domestic remedies rule would not present a problem in all cases. In direct actions (ie where the Community institution was defendant in the Community Courts) the domestic remedies rule would be exhausted relatively speedily because there would be only two levels, CFI and ECJ. In cases brought in the national courts the time taken in exhaustion of domestic remedies would depend on how the rule was to be interpreted. If a national court of first instance made a reference to Luxembourg and the Luxembourg ruling determined the fundamental rights point, that might mean, for Strasbourg purposes, that the domestic remedies could be regarded as having been exhausted at that stage, without the necessity for the case to be taken back to the national courts (QQ 50-2). This is a matter which could usefully be clarified in the instrument of accession.


132.  Both the Community Courts and the Strasbourg Court are overburdened and substantial delays now face litigants.[56] Any development which led to an increase in the volume of litigation would make a bad situation even worse. One remedial possibility that has been suggested would be to allow any ECHR/human rights point arising in litigation on issues of EU law to be taken speedily to Strasbourg by some kind of reference procedure. But as witnesses pointed out, there might be problems in separating out ECHR/human rights points and, in any event, a decision by the ECJ on the EC/EU law points might be sufficient to resolve the case. Professor Arnull was not convinced of the utility of a reference procedure from Luxembourg to Strasbourg, because of the delay it would cause to the normal reference procedure from Member State to Luxembourg. If delays appeared likely to be excessive the national judge might try to decide all the points himself, possibly undermining the preliminary rulings procedure which was the cornerstone of the internal market (Q 59).

133.  It is nonetheless necessary that something be done to prevent an extra load of litigation before either the ECJ or the Strasbourg court from inflicting additional costs and delay on litigants. Both the ECJ and the Strasbourg Court are alert to the problem and Judge Fischbach told us that quite radical solutions were being considered, including the creation of a court of first instance at Strasbourg (Q 201). It seems clear to us neither Luxembourg nor Strasbourg can continue to take on more and more work without substantial increases in resources and changes to their respective procedures.


134.  The final sentence of the Conclusion to our earlier Report stated: "The question of accession by the Union to the ECHR should be on the agenda for the IGC". We are therefore pleased to see that the issue has been taken up in the Convention on the Future of Europe, paving the way for the IGC scheduled to begin later this year.

135.  Our view remains that accession to the ECHR is the best way to guarantee a firm and consistent foundation for fundamental rights in the Union. The case for Union accession to the ECHR remains a very strong one. As the Government acknowledged, there is already a growing divergence between the human rights jurisprudence of the ECJ and that of the ECHR. With the growth of both Community and Union laws affecting the individual, there is an increased scope for further and greater divergence. To give the ECJ the final say on human rights issues would enhance the risk of conflicts of jurisprudence with the Strasbourg Court. Avoidance of this risk should be a priority. Further, as we said in our earlier Report, the Strasbourg Court as an external final authority in the field of human rights can bridge the gap which exists in the protection of those rights in the Union.


136.  It is significant that most of those who are advocating accession do not see it as an alternative to the inclusion or the incorporation of the Charter. They see it as an addition. The Government's view was that there were "certain inherent conflicts in trying to do both. Both may be possible and we have to be very careful about how we construct such a possibility" (Q 249). But, as Statewatch pointed out, we are not being forced to choose between an enhanced status for the Charter and accession to the ECHR (p 99). Integrating the Charter into the Treaties would not prevent or restrict accession to the ECHR. And although Article 52(2) of the Charter (one of the horizontal clauses) is intended to regulate the relationship of the Charter and the ECHR, whether that clause would be sufficient to avoid divergent interpretations in the application of the ECHR has been questioned.[57]

137.  Accession by the Union or Community to the ECHR would require not just the unanimous agreement of EU Member States but the agreement of all contracting parties to the ECHR. This might take some years to negotiate and conclude. There are technical problems to overcome and it would be necessary first for all parties to the ECHR to agree the changes and second for those changes to be ratified by the Contracting Parties in accordance with their national constitutional requirements. It is by no means a foregone conclusion that negotiations would succeed, or that ratification would take place, or that the process would be speedy. Negotiations could not begin until the Union/Community had been given the necessary powers to accede and the Council had agreed the mandate to commence the negotiations. But, given the political will, these difficulties would not prevent preliminary work being put in hand earlier.

138.  By contrast the Charter could be integrated into the Treaties at the next IGC and could take its place as the EU Bill of Rights at the same time as Member States ratify the new EU Treaty. We agree that for these reasons integration of the Charter should go forward, provided sufficient safeguards for the ECHR and for Member States' competences can be secured via the horizontal clauses, bolstered by the commentary.

52   Statewatch gave as an example the case of Bankovic v UK, before the Strasbourg court. [2002] EHRLR 775. Back

53   Final report of Working Group III on Legal Personality. Doc. CONV 305/02. Back

54   Study of Technical and Legal Issues of a Possible EC/EU Accession to the European Convention on Human Rights. Report adopted by the Steering Committee for Human Rights (CDDH) at its 53rd meeting (25-28 June 2002). Doc DG-II (2002)006. Back

55   Q 242. Back

56   In the first seven months of 2001, 20,739 applications were received by the Strasbourg Court. The number of applications has also risen steeply in recent years (553% in the period between 1988 to 2000). See Structures, procedures and means of the European Court of Human Rights, a report of the Council of Europe Committee on Legal Affairs and Human Rights, 17 September 2001. At the recent Thomas More Lecture at Lincoln's Inn on 17th October 2002, Sir Nicholas Bratza, the UK judge at the Strasbourg Court, said that the current backlog of cases was approximately 30,000. Back

57   See the Council of Europe's recent report, Study of Technical and Legal Issues of a Possible EC/EU Accession to the European Convention on Human Rights. Report adopted by the Steering Committee for Human Rights (CDDH) at its 53rd meeting (25-28 June 2002). Doc DG-II (2002)006, at para 80. Back

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