Adam Lazowski and Ramses Wessel (The Centre for European Policy Studies)
On 18 December 2014, the European Court of Justice (ECJ) issued a decision according to which the EU should not accept the accession to the European Convention on Human Rights (ECHR). According to ECJ, the Convention is incompatible with the founding EU treaties because it undermines the autonomy of the EU law. The obligation of the EU to formally accept the ECHR is thus complicated by its intervention into the EU powers and its legal system.
The judges base their decision on several arguments. The European Union is not a state but it has its peculiar legal framework which is independent from any state or international courts and which is under the jurisdiction of the ECJ. A coordination mechanism must be constructed in order to interpret the secondary European legislation before the European Court of Human Rights (ECHR). The ECJ usurps the right to interpret European legislation. This complicates the implementation of the mechanism for correct assigning of requests from non-Member States and individual persons.
A specific argument of the ECJ is then the area of Common Foreign and Security Policy (CFSP) where the ECJ has almost no jurisdiction. The ECHR could, however, decide on the impact of the CFSP on human rights protected by the Convention. The EU wants to preserve its autonomy in this area due to the concern about potential growth of judicial activism in CFSP. The question remains, why the EU cannot do so, when individual states have accepted external control, especially since the EU has committed itself to it in respective agreements.
The Member States do not favor the ECJ decision as they have put a lot of effort into the negotiations on the accession to the European Convention on Human Rights. The judges have similarly acted in the past when they rejected the accession to the Convention for the lack of competences for the EU. The situation will evolve in two directions. Either the founding EU treaties will be changed, or a new accession agreement will be negotiated, whereby the latter option seems to be a more likely scenario. The purpose of the new agreement will be to minimize the impact of the Convention on EU legislature. Nonetheless, will this be enough for the ECJ?
(The study can be downloaded here)