No Accession to Human Rights Treaty for EU

     (CN) – A 20-year battle to get the EU into the European human rights convention hit yet another snag Thursday, with Europe’s highest court declaring that the latest agreement runs counter to EU law.
     In 1953 – long before the European Union existed – the nations of Europe joined the European Convention for the Protection of Human Rights and Fundamental Freedoms, known as the ECHR. The Council of Europe established the treaty in the wake of World War II to both protect human rights in the future and battle the growing threat of Communism.
     But while individual European nations become ECHR members upon entry into the EU, the union itself is not. In fact, in 1996 the European Court of Justice ruled that the EU could not legally accede to the treaty.
     Since then, the European Parliament and Council and the European Commission have worked to give the EU constitution and the ECHR the same legal value, by signing 2009’s Treaty of Lisbon. That treaty gave EU citizens the same rights guaranteed by the ECHR and also ordered accession – provided that certain criteria were met in the agreement to preserve EU sovereignty.
     But the latest draft of the accession agreement does not go far enough to protect EU sovereignty or primacy, the EU high court ruled Thursday.
     In particular, the Luxembourg-based court bristled at the idea that decision made by the European Court of Human Rights would be binding on the EU courts while the Court of Justice’s interpretations of EU law and constitution are not binding on the Strasbourg-based court.
     The high court also took issue with the ECHR requirement that member states must police each other for the observance of human rights within their territories.
     “The principle of mutual trust between the member states is of fundamental importance in EU law, given that it allows an area without internal borders to be created and maintained,” the court wrote. “That principle requires, particularly with regard to the area of freedom, security and justice, each of those states, save in exceptional circumstances, to consider all the other member states to be complying with EU law and particularly with the fundamental rights recognized by EU law.”
     The court continued: “Thus, when implementing EU law, the member states may, under EU law, be required to presume that fundamental rights have been observed by the other member states, so that not only may they not demand a higher level of national protection of fundamental rights from another member state than that provided by EU law, but, save in exceptional cases, they may not check whether that other member state has actually, in a specific case, observed the fundamental rights guaranteed by the EU.”
     Additionally, the high court found a provision that would allow member states to seek preliminary rulings from the Court of Human Rights – rather than the Court of Justice – particularly objectionable.
     “It cannot be ruled out that a request for an advisory opinion by a court or tribunal of a member state that has acceded to that protocol could trigger the procedure for the prior involvement of the Court of Justice, thus creating a risk that the preliminary ruling procedure provided for in the EU constitution might be circumvented, a procedure which is the keystone of the judicial system established by the EU’s treaties,” the court wrote.
     “The court has consistently held that an international agreement cannot affect the allocation of powers fixed by the treaties or, consequently, the autonomy of the EU legal system, observance of which is ensured by the court. That principle is notably enshrined in the EU constitution, according to which member states undertake not to submit a dispute concerning the interpretation or application of the treaties to any method of settlement other than those provided for therein,” the high court added.
     Such a co-respondent mechanism would upset the division of powers between the EU and member states, the court concluded – finding the latest attempt at accession to the ECHR incompatible with EU law.

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