CRITICISM OF THE EUROPEAN COURT OF HUMAN RIGHTS
This chapter is unique in that it is the only one in this volume which addresses counter-dynamics of a future Contracting Party to the European Convention on Human Rights (ECHR). The Council of Europe and the European Union (EU) have a long tradition of cooperation which draws on their shared values and there are many formal links between the two organisations.1 However, the EU has not yet acceded to the ECHR.
The accession of the EU to the ECHR has been on the European agenda for over thirty years. In its Opinion 2/94 delivered in 1996, the Court of Justice of the EU (CJEU, Luxembourg Court) had ruled that the European Community had no competence to accede to the ECHR as there was no adequate legal basis in the EU Treaties for accession. The Treaty of Lisbon answered the Court's demands by introducing a clear obligation for the EU to accede to the ECHR in Article 6(2) Treaty on European Union (TEU).
The accession negotiations between the Council of Europe and the European Commission started in July 2010, shortly after the entry into force of the Treaty of Lisbon. Three years later, a newly formed ‘47+1’ group, which comprised representatives of all Council of Europe Contracting Parties and of the European Commission, completed the negotiations by adopting a Draft Accession Agreement (DAA). However, in the report on the final negotiation meeting, the EU representative already indicated that several political and procedural hurdles were still to follow, most notably the CJEU's assessment of the compatibility of the draft agreement with the EU Treaties.
In its seminal Opinion 2/13 issued on 18 December 2014, the CJEU ruled that the DAA is not compatible with the EU Treaties. This conclusion contrasts with that of the European Commission, the Council, the European Parliament and the 24 Member States who submitted written observations. Moreover, Advocate General Kokott had suggested a conditional ‘yes’ to an accession under the DAA.
Against this backdrop, this chapter examines the attitude of the EU to the ECHR.