EU and the European Court for Human Rights after Lisbon Treaty adoption

I
The paper will examine the constitutional solutions included in the EU Lisbon Treaty adopted recently
which pertain to the human rights protection 1. Notably, the accession of EU as such to the European
Convention of Human Rights is a matter of reality now. However, political and legal implications
should be expected despite the existing optimism for establishing coherence between both systems. On
one side, having the European Convention on Human Rights and Freedoms and the European Court of
Human Rights as mechanism for judicial control on respect of the Convention, and on the other hand
2
the European Charter on Fundamental Rights from 2000 with the European Court of Justice. Thus,
the analysis will attempt to answer the question whether the similarity and/or divergence of EU and
the broader European system will strengthen the protection of human rights or will create additional
confusion.

Initially, one has to look at the specificity of both systems before launching to the core of the analysis
related to the constitutional changes of Treaty of Lisbon which entered into force on December 1,
2009. EU it's a sui generis organization established in 1952 as Steal and Coal Community. The main
purpose than was the economic interest, the promotion of human rights was not a primary objective for
the founders of then European Communities. Throughout its evolution the fundamental rights rose as a
requisite not only for Member States, but also for the those biding to acquire full membership to the
European Union3.

The European Union is comprised of institutions with capacity of lawmaking - directly applicable in
the Member States, which means there is no necessity to adopt implementing legislation. The areas of
legal regulation are wide and does not pertain only to human rights. Although human rights are
generally matter of interest of the Union until the adoption of European Single Act of 19864 and
subsequently with the Treaty on European Union 1992 no catalog of fundamental rights protection was
provided by the EU/EC primary positive law. The case law of the European Court of Justice made a

1 Treaty of Lisbon art 6(2 and 3).

2
3 Copenhagen Criteria....
4 In its preamble stressed the determination of State Parties ' to work to promote democracy and fundamental
rights.....recognized in the European Convention of Human Rights'.
breakthrough for including direct provision recalling in its judgments the general principles of law and
on the rule of law5. The formal inclusion was done with the Treaty on European Union in article F (2)
which reads: 'The Union shall respect fundamental rights, as guaranteed by the European Convention
for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950
and as they result from the constitutional traditions common to the Member States, as general
principles of Community law'6.

The Council of Europe on the other hand is the oldest pan-European organization founded in 1949 and
nowadays comprised of 47 Member States including EU Members States and non-EU Member States.
Its primary objective since the establishment is to promote the respect for human rights, democracy
and rule of law. The legal instrument which is most widely known is the European Convention of
Human Rights and Fundamental Freedoms (ECHR) from 1950. The body responsible for
implementation of the Convention is the European Court of Human Rights (ECtHR).
II.
III.The provision relevant for the discussion in this paper included in the Lisbon Treaty is Article 6.
The paragraph 1 relates to the Charter of the Fundamental Rights of the European Union whereby
making it legally binding in its totality for the first time since its proclamation in 2000 in Nice 7.
Initially, is relevant to examine the substantive complementarity and/or divergence between both sets
of documents (the Charter on one and the ECHR on the other hand) before launching to the procedural
discussion.
IV.
V.Since 1974 all Members States of EC/EU have been also members to the ECHR. As a consequence
the ECHR and the case law of the ECtHR have been serving both to the development of the ECJ's
practice and for drawing up the Charter on Fundamental Rights8. Similarly the historic evolve of
EU/EC treaties confirm that ECHR has been taken as reference point in every document. This is due to
the fact that Members States of EC/EU respectively as States Parties of ECHR have obligation to
'secure to everyone within their jurisdiction the rights and freedoms...'. According to the case law of the
ECtHR this obligation is both positive and negative, meaning that states have to implement the
provisions in their domestic legislation and thus ensure protection and also to refrain from violating the

5
6 Treaty on European Union, Official Journal C191 July 1992. Available at: http://eur-
lex.europa.eu/en/treaties/dat/11992M/htm/11992M.html
7 Charter .
8 Comparison of similar provisions p....
rights and freedoms stipulated in the ECHR9. Such requirements both contained in the ECHR and in
the ECtHR case law simultaneously shaped the fundamental rights protection within EU/EC. In that
sense Article 52 para 3 of the Charter provides:“In so far as this Charter contains rights which correspond to
rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and
scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union
law providing more extensive protection.”

In short the said provision stresses that the both sets are substantively similar, but however broader
protection might be provided with the Charter itself. That the Charter is more extensive can be also
confirmed by employing the general rules of treaty interpretation10 and by consecutively comparing
both regimes. First and foremost the difference between the Charter and ECHR is that the former
among political and civil rights includes economic, social, cultural and citizenship rights as well.
Further, it contains provision on non-discrimination which is stand-free as oppose to the ECHR which
has to be related to the substantive right in order discrimination to be claimed. The Charter has one
general limitation clause whereas the ECHR has separate restriction clauses.

Apart from these minor differences of the substantive provisions, this parallel regimes situation triggers
another question of paralel application and functioning of the two systems in situation when EU
accedes to the ECHR and accordingly when the Charter is legally binding in its totality. Until the
declaratory level this parallelism does not create problems but when brought to practical terms it could
create difficulties if the details surrounding the accession and all related issues are not worked out
properly.

In terms of ratione personae jurisdiction the Charter does not directly provide a right of individual
petition to the ECJ. The only recourse to Luxembourg open to litigants for a breach of a Charter right
would be, therefore, through the preliminary reference procedure which enables domestic courts to
consult the ECJ for rulings on points of Community law. In that sense the citizens have limited locus
standi when it comes to the ECJ. Whereas the ECHR provides for individuals to directly claim their
rights in front of the ECtHR these are considered admissible if only certain criteria are satisfied
including the exhaustion of all domestic remedies11. In that sense many jurisdictional questions are
pertinent. First, which is the relationship between the ECtHR and ECJ? Should ECtHR be last instance
9 Louizidou...
10 Vienna Convention on the Law of Treaties.
11
resort for examining alleged human rights violations, and should review the ECJ judgments? Who
decides on the issues related to EU law and the human rights protection? These questions will be
reviewed below.
II.
III.To answer this question one have to turn to the core of the analysis which is linked to article 6 (2) of
the Lisbon Treaty. The said article entails EU as such with separate legal personality for accessing to
the ECHR. In that sense the article reads: 'The Union shall accede to the European Convention for the
Protection of Human Rights and Fundamental Freedoms. Such accession shall not affect the Union's
competences as defined in the Treaties.'12. There are many arguments in favor of accession. The most
frequently used is that the accession to the ECHR will complete the EU system for protection of human
rights13 Even though the expectations are quite high this process is not devoid of complications and
confusion if not clearly defined and elaborated. Therefore, negotiations are set out and rapportuers on
both sides are appointed to explore the possibilities of compromise on the divergences related to the
accession14. In any case various legal and political implications are to be anticipated.

The former pertain to the more technical issues whereas the latter to the political results these changes
will bring about both to the EU and Council of Europe as such. In terms of legal consequences EU will
become Party to the ECHR and submit its sui generis character to the general functioning of CoE and
particularly to the ECtHR, despite the fact that all Members States of EU are in the same time State
Parties to the ECHR. Such a situation might foster changes in two directions. On one hand for the
ECtHR's and its functioning but also for the EU institutions particularly the European Court of Justice.
In addition this might create different political climate in the human rights protection.

Moreover, the relevant question related to the legal consequences of the EU's accession to the ECHR is
the fact that regardless all EU Member States are represented at the ECtHR by its own judge, the EU
separately will appoint a judge. The intention of the ECHR is clear and that is all European states
systems to be represented in the body responsible for its implementation, but that was intended for
states as subjects to international law and not for supranational organizations such EU which represnts
the various constitutional systems of its Member States. However, the Vice-President Reding in her
speech to the Parliament reaffirmed the position of the Commission to appoint full time judge at the

12
13 Vivine Reding
14 Rapportuer
ECtHR15. On the other hand, one author points out that the accession to the ECHR and the appointment
of a judge would be very costly step for EU, which does not guarantee the strengthening of the human
rights protection.

Furthermore, issues that in the same time are of technical but also substantive nature is the EU
Commission's stance articulated through Ms.Reding which suggests that the ECtHR should not in
principle interpret EU law. How this is possible when having EU accessed to the ECHR is not clear?
The main role of ECtHR 'extends to all matters concerning the interpretation and application of the
Convention16, in other words includes revision of domestic legislation and acts the of Member States
towards its citizens. Translated in terms of EU's accession it involves revision of the EU legislation and
acts of its institutions. Should ECtHR do a revision to human rights standards as defined by the ECHR
after the European Court of Justice has adjudicated the matter? On the ECJ side, there is risk that this
eventuality would not be appreciated because the ECJ's exclusive jurisdiction on the interpretation and
the application of Community law.

Some authors even justifiably question whether such a revision would be reasonable17. Why? Generally
both the findings of ECJ and ECtHR have been following similar lines and have been complementing
each other18 confirmed also by historic evolve of EC/EU treaties which have clear reference to ECHR,
there might be overlaps. But what if there are discrepancies in the case law? Which judgment would
precede for EU as such and its Member States? One author believes that even after Lisbon the case law
between both courts will be harmonized, but it does not point out how this will be achieved on
practical level, thus still this remains to be seen19.

Furthermore, what if violation of the ECHR is identified, should EU as such be held accountable or the
respective Member State? The practice of the ECtHR suggests that even an alleged violation was a
result of an EU legislation could not excuse the Member States from responsibility: they could not, by
transferring powers to an international or supranational institution, evade their own responsibility
under the ECHR 20. However, this is the situation when the organization is not Contracting Party, and

15 Ibid.p.5.
16 Article 32 European Convention
17 EU accession to ECHR p.1 Available at: http://www.europolitics.info/eu-adhesion-to-european-convention-on-human-
rights-without-benefit-for-citizens-art278556-10.html
18 Comparison of similar provisions p....
19 Lusiuz Wilder
20 Waite and Kennedy v. Germany (GC), Appl. No. 26083/94, ECtHR decision of 18 February 1999, para 67.
thus cannot be found in violation of the provisions deriving out of particular treaty21. But what happens
in the case of EU and accession to ECHR? In that direction one should ask whether the ECtHR will
retain or abandon above-mentioned position. If opts for the former than EU's accession to ECtHR is
obsolete, and there is no reason as already pointed out stance to appoint a judge and make whole
exercise of accession negotiation. If the intention is to held EU and its institutions responsible for the
breaches of the ECHR than there is validity of the legally envisaged accession whereas having ECtHR
as final adjudicator regarding the protection of human rights in broader Europe. In same time one
should have in mind the fact that ECJ has supremacy of interpretation of EU law, actually this is what
Redding suggests when points out that the ECtHR should not in principle interpret EU law.

However, it would be rather hard for the ECtHR to take up such a rigid stance not to interpret EU law
and lawfulness of the act or omissions of its bodies when revising alleged breaches of the ECHR.
Should then both courts as a matter of principle concur with each other? Is this in line with proper and
full protection of human rights, both courts making the similar findings or is 'politically' justifiable
solution? Then what is the reason behind the accession? The very idea of accession to the ECHR
implies that EU acts would become subject to review by the ECtHR for their compliance with the
ECHR after the local remedies have been exhausted. The fact that EU was not a party to the ECHR
meant that it was not legally bound by it, and that it could not participate in the proceedings before the
ECtHR against its Member States, even those involving its own legal acts.

At this point the doctrine on equvalent protecion arises which either will gain more significance or it
will be abandoned completely with the EU accession to the ECHR22. In short the doctrine was
developed by the ECtHR which found the claims against EU Members States involving EC
inadmissible. This approach rose out of presumption that EU legal order provides protection which is
equivalent to that of the ECHR, and the action taken in compliance with such legal obligations would
be justified as long as the organization is considered to protect fundamental rights in a manner which
can be considered at least equivalent to that for which the Convention provides23.

See also Matthews v. United Kingdom, ECtHR(GC) decision of 18 February 1999, para 32. 'Member States’
responsibility therefore continues even after such a transfer”
21 Bosphorus para....
22 Concurring opinion of Judge Ress Bosporus case p...../ Loreta p.15.
23 Bosphorus Hava Yollari Turizm v. Ireland, App. No. 45036/98, ECHR, 30 June 2005.
In fact this doctrine confirms that parallel rights protection system co-exists along with the ECHR, which allows
to EU/EC and Members States certain margin of appreciation in adopting legislation and policy measures as
long this is in compliance with ECHR standards. The relevant question then is should this margin of
appreciation be reviewed and more importantly quashed by the ECtHR if found to be breaching the ECHR, and
after ECJ had adjudicated the matter? In that case which is the last instance ajudicator? If it tangles the
protection of human rights and respect of the ECHR and if all procedural requirements are satisfied then there is
no reason why ECtHR should not conduct legal assessment. How then it can be expected for ECtHR not to
interpret EU's law is not quite clear.

The case has received a wide interest and was subject to many criticism. One author was blunt in its
statement that it “missed opportunity to establish a clear, coherent and uncompromising approach to
the protection of human rights within the Community legal order“24. Other comments have been more
reserved saying that case is “an illustration of the singular nature of a multidimensional European legal
space, which is pluralistic and hybrid in nature, in which there exists no straightforward hierarchical
relationship in human rights cases”25. Whereas some have found the doctrine as potentially providing a
deep and specific insight into the level of fundamental rights protection afforded by the EU and the
ECJ in individual cases, whilst still retaining the autonomy of the EU legal order26.
In addition, there two contradictory effects out of the doctrine of equivalent protection taken together
with solutions included in the Lisbon Treaty. This doctrine on one hand gains more weight by giving to
the Charter on Fundamental Rights binding legal effect and thus far closing the EU gap of fundamental
rights protection, whereby EU's accession to ECHR intends to strengthen Council's of Europe human
rights protection system. It seems that EU's role in whole accession assignment is two fold. To affect
its own system, but also to add up to the broader system of human rights protection. But is it the
accession only led by inspiration for protection of human rights or for achieving greater control over
the broader system of protection. What should not be forgotten that EU as Party to ECHR will also be
represented at the Committee of Ministers body that supervises implementation of the judgments
brought by the ECtHR. In simple words if the ultimate motivation is ensuring greater protection of

24 Peers, S. Limited responsibility of European Union member states for actions within the scope of Community
law. Judgment of 30 June 2005, Bosphorus Airways v. Ireland, Application No. 45036/98. European
Constitutional Law Review. 2006, 2: 443–455.
25Douglas-Scott, S. Case comment on Bosphorus Hava Yollari Turizm Ve Ticaret Anonim Sirketi v. Ireland, application
No. 45036/98, judgment of the European Court of Human Rights (Grand Chamber) of 30 June
2005, (2006) 42 E.H.R.R. 1. Common Market Law Review. 2006, 43: 243?254.
26 Costello, C. The Bosphorus Ruling of the European Court of Human Rights: Fundamental Rights
and Blurred
Boundaries in Europe. Human Rights Law Review. 2006, 6(1): 87?130, p. 94.
human rights then the accession is justifiable, but if guided by the incentive of supremacy of EU legal
order as oppose to the 'other' the reason behind the accession exercise should well be questioned and in
same time criticized.

Conclusion
After the analysis of the article included in Lisbon Treaty pertaining to human rights protection it is
identified that is mandatory the EU accession to the ECHR to be done by way of precisely clarifying
the roles, competences and jurisdictions particularly the relationship between ECtHR and ECJ, since in
the same time there is substantive similarity between the Charter and the ECHR. In any case many
procedural questions arise which is not obvious how it will be tackled. Therefore, EU individually
should contribute toward clarification of the matters which are uncertain but also the negotiation
should answer and elaborate these question for simple purpose of strengthening the protection of
human rights on European level. It is evident that EU as such would like to have the upper hand even
broadly through the Council's of Europe protection system but should in the same time be aware of the
responsibility behind such aspiration. Thus, its motivation and intention should be as clear as possible
in order not to produce space for political leverage and its institutional and Members States interest to
out weight the protection of human rights.