Legal aspects of the accession of the European Union to the European Convention on Human Rights
- Author(s):
- Parliamentary Assembly
- Origin
- Assembly
debate on 10 April 2025 (16th sitting) (see Doc. 16126, report of the Committee on Legal Affairs and Human
Rights, rapporteur: Mr Titus Corlăţean). Text
adopted by the Assembly on 10 April 2025 (16th sitting).
1. The European Convention on Human
Rights (ETS No. 5, the Convention), which is marking its 75th anniversary
in 2025, can be considered as the most outstanding achievement of
the Council of Europe and the cornerstone of all its activities.
Although ratification of the Convention is a precondition for accession to
the European Union and the fundamental rights guaranteed by the
Convention are part of the European Union’s general principles of
law, the European Union is not yet a Party to the Convention and
its institutions are not directly bound by it. This means that the
European Union member States – all member States of the Council
of Europe and Parties to the Convention – can be held responsible
for breaches of Convention rights before the European Court of Human
Rights (the Court) even when implementing or applying European Union law,
while the actions of the European Union institutions themselves
are not subject to the same external judicial review. This is problematic
given the increasingly broad competences transferred to the European Union,
making it more difficult to accept that the European Union institutions
are the only public authorities and “legal space” operating in Council
of Europe member States that are not subject to external oversight
by the Court. This imbalance may lead to confusion and perceived
or actual disparate legal protection, to the detriment of European
Union citizens and human rights protection in Europe.
2. Referring to its previous resolutions and recommendations
which, for more than forty years, have called on the then European
Communities and later the European Union to accede to the Convention,
most recently its
Resolution
2430 (2022) “Beyond the Lisbon Treaty: strengthening
the strategic partnership between the Council of Europe and the
European Union” and its
Recommendation
2245 (2023) “The Reykjavik Summit of the Council of Europe
– United around values in the face of extraordinary challenges”,
the Parliamentary Assembly considers that the European Union’s accession
to the Convention will:
2.1 strengthen
the protection of human rights in Europe by giving citizens of the
European Union, and persons within its jurisdiction, the right to
lodge an application with the Court when they consider that their
fundamental rights have been violated by a European Union institution.
They will therefore enjoy the same protection vis-à-vis acts of
the European Union as they presently enjoy vis-à-vis all European Union
member States;
2.2 be the best way to ensure the harmonious development of
the case law of the European Court of Human Rights and the Court
of Justice of the European Union in human rights matters, thereby
securing a coherent system of human rights protection across Europe,
based on common minimum standards, for the benefit of public authorities,
the courts, in particular, in all member States;
2.3 confirm the essence of the European Union as a Union based
on the rule of law, and strengthen the principle of legal certainty,
given that the European Union institutions will be subject to the
same external judicial review on human rights matters as the member
States;
2.4 resolve the problems resulting from the fact that currently
the European Union cannot be party to proceedings before the Court,
in cases where the implementation or application of European Union
law by member States is at stake, and facilitate the execution of
the Court’s judgments requiring amendments to European Union law;
2.5 convey a strong political message of clear commitment
to the protection of human rights and international law, not only
within the European Union boundaries but also Europe-wide and worldwide, at
a time when war has returned to Europe and the common values shared
by the Council of Europe and the European Union are under threat.
The accession will therefore enhance the credibility of the European
Union, its neighbourhood policies and its external relations;
2.6 reinforce synergy, complementarity and co-operation between
the Council of Europe and the European Union, which is the main
institutional partner of the Council of Europe, in line with the Reykjavik
Declaration.
3. The Assembly recalls that the Treaty of Lisbon, which entered
into force on 1 December 2009, created a legal obligation for the
European Union to accede to the Convention. On the Council of Europe
side, Protocol No. 14 to the Convention for the Protection of Human
Rights and Fundamental Freedoms, amending the control system of
the Convention (CETS No. 194), which entered into force in 2010,
amended Article 59 of the Convention in order for the European Union
to be able to accede to it. Consequently, negotiations for accession opened
in 2010 and a draft accession agreement was agreed in April 2013.
However, in December 2014, the Court of Justice of the European
Union concluded in its Opinion 2/13 that the draft accession agreement
was incompatible with the European Union treaties, triggering disappointment
and some criticism. It was not until 2020 that negotiations on the
accession resumed, with the aim of overcoming the objections identified
by the Court of Justice of the European Union in its opinion and
revising the draft accession instruments to the extent necessary.
4. The Assembly warmly welcomes the fact that the ad hoc negotiation
group “46+1” established under the Council of Europe Steering Committee
for Human Rights (CDDH) reached a unanimous provisional agreement on
revised draft accession instruments in March 2023. This is a collective
achievement which shows a considerable sense of compromise by all
parties involved, including non-European Union member States, to overcome
the numerous legal obstacles found by the Court of Justice of the
European Union. The Assembly considers that the provisional agreement
reached on most issues (co-respondent mechanism, prior involvement
procedure, interparty applications, principle of mutual trust, advisory
opinions under Protocol No. 16 to the Convention for the Protection
of Human Rights and Fundamental Freedoms (CETS No. 214)) accommodates
the position of the Court of Justice of the European Union on the
specificities and autonomy of European Union law, while preserving
the integrity and effectiveness of the Convention system, the role
of the European Court of Human Rights as the ultimate master of
its proceedings and the position of individual applicants before
the Court. Furthermore, the new rule on majority requirements in
the Committee of Ministers of the Council of Europe when supervising
the execution of judgments in cases against the European Union duly
protects the interests of non-European Union member States.
5. With regard to the revised provision on the election of judges
to the Court (new Article 7 of the draft accession agreement), the
Assembly notes that the amendments to the 2013 version of the draft
agreement do not alter the substance and purpose of the original
provision, which was to provide a basis for the participation of
the European Parliament in the sittings of the Assembly and the
meetings of its relevant bodies when exercising their functions
under Article 22 of the Convention. However, the agreement on the
modalities of this participation reached in June 2011 between representatives
of the Assembly and of the European Parliament within the Joint
Informal Body will need to be updated in view of the developments
since then, in particular the fact that the then Sub-Committee on
the Election of Judges to the European Court of Human Rights (of
the Committee on Legal Affairs and Human Rights) is now an Assembly
committee in its own right. The updated agreement will then have
to be approved by the Assembly and the European Parliament in due course,
in accordance with their own internal procedures. The Assembly also
understands that the Guidelines of the Committee of Ministers on
the selection of candidates for the post of judge at the European
Court of Human Rights, and its own resolutions and practice on the
election of judges, will apply to the European Union internal procedure
for the selection of the candidates to be submitted in respect of
the European Union. In this regard, it also expects that the European
Union will duly consult the Advisory Panel of Experts on Candidates for
Election as Judge to the European Court of Human Rights before submitting
its list of candidates to the Assembly, as do all Parties to the
Convention.
6. The Assembly notes with satisfaction that, with respect to
the “Basket 4” issue (acts related to the European Union Common
Foreign and Security Policy), the Court of Justice of the European
Union, in a judgment delivered on 10 September 2024, has clarified
the scope of its jurisdiction in relation to these acts. The Court
of Justice of the European Union found that the limitation of its
jurisdiction in this area can be reconciled both with Article 47
of the Charter of Fundamental Rights of the European Union (right
to an effective remedy and to a fair trial) and with Articles 6
and 13 of the Convention. This judgment has generally been perceived
as a positive step that could potentially solve the problem of the
limited scope of jurisdiction of the Court of Justice of the European
Union in this area and help overcome what appears to be the last
remaining obstacle to accession. The CDDH welcomed the judgment
“as a promising avenue to be explored for resolving the outstanding
issue” and encouraged the European Union to take the necessary decisions
at the earliest opportunity. In fact, the only way to be sure that
this judgment fully resolves the issue would be to ask the Court of
Justice of the European Union for an opinion on the new draft accession
agreement.
7. In view of these considerations and in order to maintain the
current momentum as a result of the provisional agreement on revised
draft accession instruments, the 2024 judgment of the Court of Justice
of the European Union, and the entry into office of the new European
Commission, the Assembly:
7.1 invites
the European Union institutions, in particular the European Commission
and the Council of the European Union, to take the necessary decisions
aimed at facilitating the continuation of the European Union accession
process, including by submitting a request for an opinion on the
compatibility of the revised draft accession instruments with the
European Union treaties to the Court of Justice of the European
Union without delay and, if the opinion is positive, to proceed
with the conclusion of the agreement as soon as possible in accordance
with their internal procedures;
7.2 invites the European Parliament to support the draft accession
agreement and start the consultations with the Assembly with a view
to updating the 2011 agreement on arrangements related to the participation
of the European Parliament representatives in the sittings of the
Assembly and the meetings of its relevant bodies when the Assembly
exercises its functions concerning the election of judges to the
Court;
7.3 calls on the member States of the Council of Europe that
are also members of the European Union to exercise their influence
within the European Union institutions to enable the rapid conclusion
of the accession agreement and its entry into force, including by
submitting observations in support of the current draft accession
agreement before the Court of Justice of the European Union in the
context of any opinion sought;
7.4 urges the parliaments and governments of member States
of the Council of Europe to take all measures within their areas
of competence to facilitate the conclusion of the accession agreement
and its entry into force, in particular by signing and ratifying
it in accordance with their national procedures in a timely manner;
7.5 calls on the parliaments and governments of member States
of the Council of Europe, in particular those that are also members
of the European Union, as well as all European Union institutions, to
raise awareness among citizens about the strengthened protection
of their fundamental rights that would result from the European
Union’s accession to the Convention;
7.6 in the meantime, invites the European Court of Human Rights
and the Court of Justice of the European Union to maintain and further
develop their well-established judicial dialogue in order to avoid any
inconsistencies in the interpretation of the Convention that would
undermine the protection of fundamental rights, by showing mutual
respect, cross-referencing each other and harmonising their positions
to the extent possible.
