¹ EU accession to the ECHR has been on the legislative agenda for decades; the European Commission's Memorandum on the Accession of the European Communities to the Convention for the Protection of Human Rights and Fundamental Freedoms (COM 79 210 Final), adopted 4 April 1979, providing an early and comprehensive analysis on the issues surrounding accession. Opinion 2/94, Accession by the Community to the European Convention for the Protection of Human Rights and Fundamental Freedoms, 1996 E.C.R. I-01759 thwarted the EU's ambition to accede without a specific treaty base. On establishing the Convention on the Future of Europe in 2001, the European Council's Laken Declaration required, inter alia, that the Convention should consider the question whether the EU should accede to the ECHR. Considerable groundwork was completed on this issue by Working Group II of the Convention on the Future of Europe led by Esko Helle, Vytenis Andriukatis and Neil McCormick in 2002-03, which ultimately led to the removal of legal obstacles to accession on the entry into force of the Lisbon Treaty via Article 6(2) TEU, and via ratification of Protocol 14 ECHR and subsequent entry into force of Article 59(2) ECHR on 1 June 2010.Google Scholar

² See the Draft Legal Instruments on the Accession of the European Union to the European Convention on Human Rights, 16 CDDH-UE (2011), available at: http://www.statewatch.org/news/2011/jul/eu-coe-echr-final.pdf (last accessed: 27 September 2011). The Draft Accession Agreement, which foresees EU accession to the ECHR and Protocols 1 and 6 (with scope for accession to further Protocols in future) was concluded at the final meeting of CDDH-UE from 20-24 June 2011, with publication of the final copy online on 19 July 2011. CDDH-UE had tabled three earlier drafts during its Working Meetings in February 2011 (4 CDDH-UE(2011), March 2011 (6 CDDH-UE(2011) and May 2011 (10 CDDH-UE(2011).Google Scholar

³ Joint Communication from Presidents Costa and Skouris, 27 January 2011 [hereinafter “Joint Communication”].Google Scholar

⁴ Id. at para 6. Presidents Costa and Skouris foresee that prior involvement of the CJEU in cases stemming from indirect actions in national courts “should not arise often.”Google Scholar

⁵ Id. For further details on the CDDH-UE's discussions on the Joint Communication's proposals, note: 5^th Working Meeting of the CDDH Informal Working Group on the Accession of the European Union to the European Convention on Human Rights (CDDH-UE) with the European Commission, Draft Meeting Report, 3 CDDH-UE (2011).Google Scholar

⁶ Discussion document of the Court of Justice of the European Union (CJEU) on certain aspects of the accession of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms, CJEU, 5 May 2010.Google Scholar

⁷ In the context of dialogue between the CJEU and national courts, see Francis Jacobs, Judicial Dialogue and the Cross-Fertilization of Legal Systems: The European Court of Justice, 38 Texas International Law Journal (Texas Int'l L.J.) 547 (2003); Edward, David, National Courts – the Powerhouse of Community Law, 5 Cambridge Yearbook of European Legal Studies 1 (2002); Speech at the opening of the Court of Justice's judicial year by the President of the CJEU, see Vassilios Skouris, The Position of the European Court of Justice in the EU Legal Order and its Relationship with National Constitutional Courts (2004). In the context of dialogue between the ECtHR and national courts, see for example, Lady Justice Mary Arden (Court of Appeal, England & Wales), Peaceful or Problematic? The Relationship between National Supreme Courts and Supranational Courts in Europe, Sir Thomas More Lecture, The Honorable Society of Lincoln's Inn (2009); Lord John Kerr (UK Supreme Court), The Conversation between the European Court of Human Rights and National Courts: Dialogue or Dictation, 13^th John M Kelly Memorial lecture, University College Dublin (2009).Google Scholar

⁸ A recent example in the UK context being parliamentary and public outcries following ECtHR rulings on prisoners’ voting rights negative to the UK's approach: Greens and M.T. v. United Kingdom Eur. Ct. H.R. 1826 (2010) and Hirst v. United Kingdom (No 2), 2005-IX Eur. Ct. H.R., and the UK Supreme Court's judgment on the right to seek review of their reporting obligations when on the sex offenders’ register; see (R ((JF) by his litigation friend (OF)) & anor v. Secretary of State for the Home Department 17 U.K.S.C. (2010). The controversy led the coalition government to announce the re-launch of a commission to consider the adoption of a UK Bill of Rights (Hansard HC Vol 523, Part 120, Col 955, 959-960 (16 February 2011)).Google Scholar

⁹ Rosas, Allan, The European Court of Justice in Context: Forms and Patterns of Judicial Dialogue, 1 European Journal Of Legal Studies (EJLS) 9 (2007); Jacobs, Francis, The European Convention on Human Rights, the EU Charter of Fundamental Rights and the European Court of Justice — The Impact of European Union Accession to the European Convention on Human Rights, in The Future of the European Judicial System in a Comparative Perspective 292 (Ingolf Pernice, Juliane Kokott & Cheryl Saunders eds., 2006). See further, Laurent Scheeck's empirical study on “supranational judicial diplomacy” between the Court of Justice and ECtHR, which frames the “dialogue” between the judges (measured, as is the norm, by reference to the citation of the other court's judgments) as the diplomatic actions of “supranational judicial networks;” Laurent Scheeck, Competition, Conflict and Cooperation between European Courts and the Diplomacy of Supranational Judicial Networks, available at http://www.ucd.ie/t4cms/06_wish_paper_laurent_scheeck.pdf (last accessed: 27 September 2011).Google Scholar

¹⁰ Communication, Joint, supra note 4, at para. 1.Google Scholar

¹¹ Id. at paras. 1 and 2Google Scholar

¹² Matthews v. United Kingdom, 1999-I Eur. Ct. H.R. (1999).Google Scholar

¹³ Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland, 2005-VI Eur. Ct. H.R. (2005).Google Scholar

¹⁴ For comprehensive analyses, see further Tobias Lock, “Beyond Bosphorus: The European Court of Human Rights'” Case Law on the Responsibility of Member States of International Organizations under the European Convention of Human Rights, 10 Human Rights Law Review (HRLR) 529 (2010); Lock, Tobias, EU Accession to the ECHR: Implications for the Judicial Review in Strasbourg, 35 European Law Review (E. L. Rev.) 777 (2010).Google Scholar

¹⁵ Matthews, supra note 13, at para. 32.Google Scholar

¹⁶ Bosphorus, supra note 14, at para. 155. The ECtHR stressed that it defined “equivalent” as meaning “comparable” rather than “identical.”Google Scholar

¹⁷ Id. at para. 156.Google Scholar

¹⁸ Connolly v. 15 Member States of the European Union, Sect. V Eur. Ct. H.R. (2008).Google Scholar

¹⁹ The gap in human rights protection exposed by Connolly, id. (and subsequent related case law), would be closed by EU accession to the Convention; see further Lock, Beyond Bosphorus, supra note 14, at 533.Google Scholar

²⁰ Council Decision authorizing the Commission to negotiate the Accession Agreement of the European Union to the European Convention for the protection of Human Rights and Fundamental Freedoms (ECHR), 10817/10 RESTREINT UE, 8 June 2010 (the partially classified Council Decision is available online at: http://register.consilium.europa.eu/pdf/en/10/st10/st10817-ex02.en10.pdf (last accessed: 27 September 2011).Google Scholar

²¹ 'European Commission acts to bolster the EU's system of protecting fundamental rights,' European Commission, IP/10/291, 17 March 2010.Google Scholar

²² CDDH-UE documents are accessible online at: http://www.coe.int/t/dghl/standardsetting/hrpolicy/cddh-ue/cddh-ue_documents_EN.asp (last accessed: 27 September 2011).Google Scholar

²³ Observer status was only granted to the Registry of the European Court of Human Rights and the Council of Europe's Committee of Legal Advisers on Public International Law (CAHDI).Google Scholar

²⁴ During the calendar year prior to the entry into force of the Lisbon Treaty, the Charter was cited in some 39 separate cases, both in CFI and ECJ judgments and AG Opinions.Google Scholar

²⁵ The Joint Communication, supra note 4 refers to the citation of the Charter in some 30 judgments since 1 December 2009.Google Scholar

²⁶ Joined Cases C-92/09, Volker und Markus Schecke GbR and C-93/09, Hartmut Eifert v. Land Essen, 2010 E.C.R I-0000.Google Scholar

²⁷ Communication, Joint, supra note 4, at para.1.Google Scholar

²⁸ Id. Google Scholar

²⁹ Id. at para. 1Google Scholar

³⁰ See, for example, Case C-120/10, European Air Transport SA v. Collège d'Environnement de la Région de Bruxelles-Capitale, Région de Bruxelles-Capitale (Opinion of AG Cruz Villalón) (2011).Google Scholar

³¹ Draft Accession Agreement, supra note 3, Article 3(2).Google Scholar

³² Id., Article 3(3).Google Scholar

³³ Id., Article 3(5). Note also, Article 46 ECHR, on the prevention of compulsory joining of a HCPas co-respondent.Google Scholar

³⁴ Id., Explanatory Report, at para. 33.Google Scholar

³⁵ Id., Explanatory Report, para. 40.Google Scholar

³⁶ Id. Google Scholar

³⁷ Id., Explanatory Report, para. 54.Google Scholar

³⁸ Id., Article 3(6).Google Scholar

³⁹ A number of experts, including Professor Christiaan Timmermans (former judge, CJEU) (speaking in a personal capacity) had suggested versions of “internal review” before a meeting of the European Parliament Constitutional Affairs Committee (AFCO), 18 March 2010, prior to the European Commission's adoption of negotiation directives.Google Scholar

⁴⁰ Although a limited Treaty change is imminent due to the financial crises in EU Member States (to establish a European Stabilization Mechanism (ESM) to stabilize the Eurozone (Article 136(3) TFEU), there is virtually no motivation for making further Treaty changes in the foreseeable future.Google Scholar

⁴¹ Joint Communication, supra, note 4, at para. 6.Google Scholar

⁴² On factors governing judicial discretion, see further: Case 283/01, Srl CILFIT and Lanificio di Gavardo SpA v. Ministry of Health 1982 E.C.R. 3415.Google Scholar

⁴³ On the obligation to refer in the event of doubt concerning validity, see further: Case 314/85, Foto-Frost v. Hauptzollamt Lübeck-Ost, 1987 E.C.R. 4199Google Scholar

⁴⁴ Draft Accession Agreement, supra note 3, Explanatory Report, at para. 60.Google Scholar

⁴⁵ Id., Article 3(6). This obligation was subject to various reservations during the negotiation process.Google Scholar

⁴⁶ The fast-track procedure préjudicielle d'urgence (urgent preliminary reference procedure) (PPU) has operated since 1 March 2008, offering an accelerated procedure for handling urgent preliminary references in the Area of Freedom, Security and Justice (AFSJ), with delivery of preliminary rulings in a drastically shorter time-frame (often within weeks, up to 6-8 months maximum) than under the standard Article 267 TFEU procedure (17.1 months in 2009).Google Scholar

⁴⁷ See generally, Leonard F. M. Besselink, The EU and the European Convention on Human Rights after Lisbon: From ‘Bosphorus’ Sovereign Immunity to Full Scrutiny?, available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1132788 (last accessed: 27 September 2011); Costa, Jean-Paul, La Convention européenne des droits de l'homme, la Charte des droits fondamentaux de l'Union européenne et la problématique de l'adhesion de l'Union européenne à la Convention, EUI Law Working Paper, 1 May 2004; Douglas-Scott, Sionadh, A tale of two Courts: Luxembourg, Strasbourg and the growing European human rights acquis, 43 Common Market Law Review (C. M. L. Rev) 629 (2006); Lock, Tobias, EU Accession to the ECHR: implications for the judicial review in Strasbourg, 35(6) E. L. Rev 777-798 (2010); Lock, Tobias, The ECJ and the ECtHR: The Future Relationship between the two European Courts, The Law and Practice of International Courts and Tribunals, Vol. 8, 375-398 (2009); Myjer, Egbert, Can the EU join the ECHR – General Conditions and Practical Arrangements in The Future of the European Judicial System in a Comparative Perspective (Ingolf Pernice, Juliane Kokott and Cheryl Saunders eds., 2006); Ress, Georg, The Legal Relationship between the European Court of Human Rights and the Court of Justice of the European Communities according to the European Convention on Human Rights in Governing Europe Under a Constitution – The Hard Road from the European Treaties to a European Constitutional Treaty (Hermann-Josef Blanke and Stelio Mangiameli eds., 2003).Google Scholar

⁴⁸ See, for example: Jacobs, supra note 10, at 291. In contrast, note Charlotte Leskinen's arguments in respect of the potential impact accession may have on the regulation of defenses in competition proceedings: Charlotte Leskinen, An evaluation of rights of the defense during Antitrust Inspections in the light of the case law of the ECTHR: would the accession of the European Union to the ECHR bring about a significant change? Working Paper IE Law School, No 10-04, 29 April 2010.Google Scholar

⁴⁹ Barnard, Catherine, The PPU: is it worth the candle?, 34(2) E. L. Rev 281 (2009).Google Scholar

⁵⁰ Lenaerts, Koen, The Contribution of the European Court of Justice to the Area of Freedom, Security and Justice, 59(2) International and Comparative Law Quarterly (ICLQ) 255, 273 (2010).Google Scholar

⁵¹ The CJEU requests national courts to seek an urgent preliminary ruling only “where it is absolutely necessary to give a ruling … as quickly as possible” (Information Note on References for a Preliminary Ruling (2009/C 297/01). See further, Panos Koutrakos, Speeding up the Preliminary Reference Procedure – fast but not too fast 33(5) E. L. REV 617-618 (2008).Google Scholar

⁵² Increases in HCPs have led to a dramatic spike in applications to the ECtHR. Efforts including the introduction of the Pilot Judgment procedure, provision for single-judge formations, reformed admissibility criteria and commitments made as a result of the Interlaken and Izmir conferences have sought to reduce the substantial backlog and streamline proceedings. For an early assessment on the functioning of pilot judgments, see further: Antoine Buyse, ‘The Pilot Judgment Procedure at the European Court of Human Rights: Possibilities and Challenges 57 NOMIKO VIMA (THE GREEK LAW JOURNAL), 1890.Google Scholar

⁵³ See generally: Lock, EU accession to the ECHR, supra note 43.Google Scholar

⁵⁴ Opinion 1/09 of the Court (8 March 2011) found the draft agreement establishing a European Patent Court incompatible with EU law, primarily on the basis that it would have the effect of ousting the jurisdiction of national courts; see further, Opinions 2/94 (28 March 1986), 1/91 (14 December 1991) and 1/03 (7 February 2006).Google Scholar

⁵⁵ National Constitutional Courts have volunteered this function in their defense of constitutional jurisdiction, the Bundesverfassungsgericht (Federal Constitutional Court of Germany) doing so more forcefully than most.Google Scholar

⁵⁶ The fundamental doctrines of primacy and direct effect where themselves established via case law resulting from national courts’ use of the preliminary reference procedure: the rulings in C-6/64, Costa v Enel 1964 E.C.R. 585 and C-26/62, Van Gend en Loos 1963 E.C.R 13 established the principles of primacy and direct effect, foundational principles for legal integration and consistency of EU law which had not been provided for by the Treaty of Rome. For affirmations of the CJEU's view on the importance of the preliminary reference procedure, and on harmonious working relationships with national courts, see, inter alia, C-16/65 Schwarze / Einfuhr- und Vorratsstelle für Getreide und Futtermittel 1965 ECR 1081; Case 107/76 Hoffmann-La Roche 1977] ECR 957, para. 5; Case C-337/95 Parfums Christian Dior 1997 ECR I-6013, para. 25; Case C-99/00, Kenny Roland Lyckeskog 2002 ECR I-4839, para. 14.Google Scholar

⁵⁷ Interlaken Declaration (19 February 2010).Google Scholar

⁵⁸ See in particular, Interlaken Declaration, Section B(4)(c), in which States Parties commit themselves to “taking into account the Court's developing case-law, also with a view to considering the conclusions to be drawn from a judgment finding a violation of the Convention by another State, where the same problem of principle exists within their own legal system. “Google Scholar

⁵⁹ Buyse, supra note 53. Note also, calls for reform made by the current UK Coalition Government and parliamentary committees in respect of both the CJEU and ECtHR in recent months (European Union The Workload of the Court of Justice of the European Union HL (2010-11) Paper 128 (….) predicted a “crisis” in the CJEU's workload, but avoided speculating on the impact of EU accession, noting that the precise impact will depend on the outcome of accession negotiations. Following the furore over ECtHR rulings on prisoner voting rights, the Commission on the UK Bill of Rights was ordered to examine proposals for the reform of the ECtHR), supra note 9.Google Scholar

⁶⁰ Joint Communication, supra note 4, at para 6.Google Scholar

⁶¹ Draft Accession Agreement, supra note 3, Explanatory Report, at para 57.Google Scholar

⁶² Article 35(1) ECHR. On the issue of preliminary references not constituting a remedy to be exhausted, see further Draft Accession Agreement (CDDH-UE (2011)16fin), Explanatory Report, at para. 57.Google Scholar

⁶³ Article 267 TFEU states that: The Court of Justice of the European Union shall have jurisdiction to give preliminary rulings concerning:(a) the interpretation of the Treaties;(b) the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union; Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court to give a ruling thereon [or] where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court [or] If such a question is raised in a case pending before a court or tribunal of a Member State with regard to a person in custody, the Court of Justice of the European Union shall act with the minimum of delay.Google Scholar

⁶⁴ Case C-224/01, Gerhard Köbler v Austria 2003 ECR I-4876. Köbler liability has been tested in a number of Member State national courts without an adverse finding being made; see, for example: UK (Cooper v Attorney General [2008] EWHC 2178), France (Getsas, Conseil d'Etat, 18 June 2008), Germany (Bundesgerichtshof, EuW (2005), 30-32), Austria (Case A36/00, Verfassungsgerichtshof, (2003)).Google Scholar

⁶⁵ At the time of going to print, the Report of the Meeting was published; see further, Report to the Committee of Ministers on the elaboration of legal instruments for the accession of the European Union to the European Convention of Human Rights, CDDH (2011), available at: http://www.statewatch.org/news/2011/oct/eu_cddh_echr_report.pdf (last accessed: 17 October 2011).Google Scholar

⁶⁶ Note, minor amendments were made to the Draft Explanatory Report (16 CDDH-UE 2011): Id. Appendix IIIGoogle Scholar