MODERN PROBLEMS OF THE ACCESSION OF THE EUROPEAN UNION TO THE EUROPEAN CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS OF 1950

Abstract

Abstract. This article examines the challenging aspects, problems of the accession of the
European Union to the European Convention for the Protection of Human Rights and Fundamental
Freedoms of 1950. It contains an overview of the legal framework for the EU’s accession
to the Convention and the changes made to the Convention and EU legislation, which have
already contributed and will contribute to the accession practically. The article also defines the
basic political, legal and institutional obstacles encountered in the ongoing negotiations on an
agreement on the EU’s accession to the European Convention on Human Rights and Fundamental
Freedoms.
The accession to the ECHR did not modify either the autonomy of EU law or the CJEU’s monopoly
on scrutinizing the validity of the acts of the Union but it introduced additional external
monitoring in relation to fundamental rights, as occurs with national Supreme Courts. Neither
does the accession result in any modification of the interesting case law of the CJEU, built up
in the 1970s as Article 6(3) of the EU Treaty expressly provides that both the fundamental rights
guaranteed by the ECHR and those which are the result of Member States’ common constitutional
traditions ‘shall constitute general principles of the Union’s law’. The case law of the
CJEU in the subject area has been highly consistent since the Treaty of Lisbon came into force
and there is a new legal framework which new features include the legally binding nature of the
Charter of fundamental rights and external judicial scrutiny by the ECtHR, introduction of which
makes it necessary to make the following legal adjustments, both within the scope of the ECHR
and within the EU itself the main of which is entering into force the relevant Accession Agreement
between the 47 states who are signatories of the ECHR and the EU.
In fact, the EU accedes to the ECHR, the Additional Protocol and Protocol 6 to the Convention.
The status which the EU will have within the ECHR, as a High Contracting Party which
is not a State, is fully regulated in the Draft Accession Agreement so that, despite the fact that a
large part of the provisions will also be included in the text of the ECHR, the future Agreement
will retain its specific relevance as such within the system of the ECHR.
The Jáuregui Report defined the institutional issues which should regulate the future Accession
Agreement. It argued that the EU should have three basic rights: the right to submit a
list of three candidates for the post of judge, one of whom is elected by the Parliamentary Assembly
of the Council of Europe on behalf of the Union and participates in the work of the Court
on a footing of equality with the other judges; the right to attend via the European Commission
with voting rights on behalf of the EU, meetings of the Committee of Ministers when it performs
its task of monitoring the execution of judgments of the European Court of Human Rights; the
right of the European Parliament to appoint/send a certain number of representatives to the
Parliamentary Assembly of the Council of Europe when the latter elects judges to the European
Court of Human Rights.

The entry into force of Protocol 14 in June 2010 had notably aided the negotiations, having
added to article 59 of the ECHR a new paragraph which made possible the accession of the
EU to the Convention.
Signing and ratification of the Agreement on the accession of the EU to the ECHR by the
member-states will result to the creation of a legal instrument which will lead to an international
organization of a supranational nature (with its own specific legal system and jurisdiction)
joining another international organization with human rights jurisdiction in which its 28
Member States (together with another 20 non-Member States) are already members and whose
jurisdiction was designed to hear claims filed against said States.
Key words: European Union, European convention for the protection of human rights and
fundamental freedoms, accession, European Court of Justice (CJEU), European Court on human
rights (ECtHR), a draft agreement on the accession, human rights.