Guest Post: Negotiations on EU Accession to the ECHR Restart after Five Years: Between Unlikely and Doable

By Dr. Fisnik
Korenica, assistant professor of Constitutional Law and Human Rights at
University of Prishtina and Co-Founder of the Group for Legal and Political
Studies. He is author of the monograph The EU’s Accession to the
ECHR, Springer 2015.

The
accession of the European Union (EU) to the European Convention on Human Rights
(ECHR) has been a heated debate for a long time. Academic and political motives
have led several authors to write about this development from a number of
perspectives. A significant amount of literature has attracted the interest of
lawyers on numerous characteristics of the mechanics of accession.

A Council of
Europe working group (WG) has just recently restarted the negotiation process
on a new draft agreement on EU’s accession to the ECHR. One must recall that although
the project of accession has been discussed
for several decades, a final draft accession
agreement was only finalized in April 2013. It was envisaged as a shared
agreement that tackled the concerns raised by EU member states around the withdrawal
of sovereign competencies. The design of the agreement met with various
criticisms, the vast majority of them relating to concerns over the external
and internal autonomy of EU law. A co-respondent mechanism, namely a tool for
joint attribution of responsibility between the EU and its member states, was
designed to bridge this gap whenever a violation of the ECHR would originate in
an action or omission of the national authorities authorized or mandated by EU
law (but not only). The draft agreement also envisaged inter-party complaints
and did not bar the EU from acceding to future protocols of the ECHR, such as
Protocol 16.

In
December 2014, the story of the draft accession agreement was brought to a
sudden halt by Opinion 2/13 of the Court of Justice of the EU (CJEU). The CJEU
found several aspects of the draft agreement problematic from the perspective
of EU law. The CJEU concluded that certain aspects such as the possibility of
the EU to accede to Protocol 16, the blurred relationship between Art. 53
Charter of Fundamental Rights and Art. 53 ECHR, the equal treatment of the EU
as a respondent hand in hand with member states, the controversial relationship
between Art. 344 TFEU and the inter-party mechanism foreseen in the draft
agreement, the prior involvement mechanism, the co-respondent mechanism, etc.,
were altogether incompatible with EU treaties. Considering that such problematic
traits were too heavy to be addressed by the negotiating teams, no solution was
seemed in sight. And indeed the process had been stalled until very recently.

The
Steering Committee for Human Rights (CDDH) ad
hoc negotiation group restarted
its negotiations in September 2020,
meeting for the first time since a final draft agreement was concluded in 2013.
It is convened with the understanding that a new negotiation process that
addresses the concerns of Opinion 2/13 should take place. One can speculate
that the motive after the call from the European Commission (EC) to restart
negotiation of a new draft agreement at this point in time is impacted by the
credibility losses which the EU faced after Brexit. The EC seemingly sees the
accession project as a gain for EU’s strategic action in international fora. The
Secretary General of the Council of Europe, Ms. Pejčinović Burić, and the EC’s
Vice President for Values and Transparency, Ms. Jourová, indicated
on this occasion that:

‘[ECHR] represents everything that the Council of
Europe and the European Union stand for. In these difficult times, the
resumption of these crucial negotiations sends a strong signal about the
commitment of our two organisations, and our member states, to the fundamental
values that we cherish. We very much hope that the negotiations can be brought
to a speedy and successful conclusion for the benefit of Europe as a whole.’

The
decision to reconvene followed the request by the EC and the Committee of
Ministers of the Council of Europe to set
new terms of reference for the new negotiation
process in 2020. The first meeting of the WG was held between 29 September and
2 October 2020, where numerous technical issues were discussed. A major point
of consideration was the ‘Paper
to structure the discussion at the 6^th negotiation meeting’,
which set a framework for the new negotiating process. The document was not
released to the public, yet transcripts
of the meeting reveal the main points
it raised: namely, the four categories of issues noted in the paragraph below.
The Paper, however, does not offer anything substantial in regards to solutions
that would resolve the existing controversy surrounding the reasonableness of
the accession project and the far-reaching requirements following from Opinion
2/13. It merely underlines what Opinion 2/13 had concluded, indicating aspects
for which a new negotiation and/or design would have to be engineered.

Four
additional major issues were discussed in the first meeting of the WG. First,
general issues of EU-specific mechanisms for the procedure before the European
Court of Human Rights (ECtHR); second, the inter-party mechanism and the possibility
for domestic judges to ask for an advisory opinion under Protocol 16 ECHR; third,
the principle of mutual trust between EU member states in the view of Art. 53 Charter
of Fundamental Rights of the EU and Art. 53 ECHR; and, fourth, the
jurisdictional immunity of the area of Common Foreign and Security Policy in
procedures before the ECtHR. The European Commission reiterated that it does
not require a privileged status for the EU in proceedings before the ECtHR. However,
it maintained that some accents would have to be enhanced in the draft
agreement for it to comply with Opinion 2/13. It
further ‘recalled its determination to
accede to the ECHR. It recalled that accession did not require to negotiate a
new Accession Agreement, but rather to make some specific amendments to the
already existing agreement whilst preserving its underlying balance.’ There is
no specific information on the elements that would manifest these new
requirements. One can assume that baseline documents will not be provided
unless there is a new final draft agreement approved by the WG.

Commenting
the future of this endeavour, Mr. Giakoumopoulos, the Director General of Human
Rights and Rule of Law at the Council of Europe, stated that:

‘[a] revised Accession Agreement will naturally
have to be regarded as a compromise package which eventually must be acceptable
to all negotiation partners. Indeed, this is a matter of great political
importance for today’s Europe. A strong political support in all European
capitals will be, therefore, the key to deliver.’

A
follow-up meeting of the WG is set for 24-27 November 2020, and there is no
draft agenda available as of now.

One
can observe that the first meeting of the WG was followed with a positive
attitude towards the utilitarian necessity for a new draft agreement. Parties
were generally open for a new negotiation process and maintained the need for
further consensus to make the project of accession possible. However, little to
no discussion that substantively engaged with the core questions of Opinion
2/13 and their plausibility in the light of a new draft agreement took place. It
is difficult to estimate whether a proper new negotiation process will succeed.
Chances are really slim that the far-reaching requirements of Opinion 2/13
would ever be consented by the 47+1 members of the WG. It is even more unlikely
that, even if there is a consensus among negotiators, a draft agreement
reflecting that momentum would ever have the support of all national
legislatures in the ratification process. However, the November meeting of the
WG will inform us more on the substance and will shed more light on the
likelihood for success of this restarted negotiating process.

Guest Post: Negotiations on EU Accession to the ECHR Restart after Five Years: Between Unlikely and Doable

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