ERA Forum (2013) 14:557–572DOI 10.1007/s12027-013-0321-01

A RT I C L E

The accession of the European Union to the EuropeanConvention for the Protection of Human Rightsand Fundamental Freedoms—overviewof the Accession Agreement

Kristi Raba

Published online: 19 November 2013© ERA 2013

Abstract This article gives an overview of the accession agreement, negotiated be-tween the European Union and the 47 Council of Europe Member States on the acces-sion of the European Union to the European Convention for the Protection of HumanRights and Fundamental Freedoms. The article also describes the negotiations lead-ing to the endorsement of the Agreement and outlines the next steps in the processleading to EU accession.

Keywords Fundamental rights · EU law · International negotiations

1 Introduction

On 5 April 2013 the countries negotiating in the framework of the Council of Eu-rope Steering Committee for Human Rights (further referred to as ‘CDDH’) reachedagreement at negotiators’ level on the draft revised instruments on the accession ofthe European Union (further referred to as ‘Union’) to the Convention for the Protec-tion of Human Rights and Fundamental Freedoms (further referred to as ‘ECHR’).1

1The agreement was reached at the fifth negotiation meeting on 3–5 April 2013 between the CDDHad hoc negotiation group and the European Union. The report of the session is available at: http://www.coe.int/t/dghl/standardsetting/hrpolicy/Accession/Meeting_reports/Web_47_1(2013)R05_EN.pdf(9 September 2013).

This article is based on a presentation given at the Summer Course on EU Institution Law organisedby ERA on 24–28 June 2013 in Trier.

The views expressed are the author’s own and do not in any way reflect the Council’s views.

K. Raba, Official at the General Secretariat of the Council of the European Union (B)DG D—Justice and Home Affairs, Rue de la Loi 175, 1048 Brussels, Belgiume-mail: kristi.raba@consilium.europa.eu

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These draft instruments2 consist of a draft Agreement on the Accession of theEuropean Union to the ECHR (further referred to as ‘Accession Agreement’), a draftdeclaration by the Union, a draft Rule to be added to the Rules of the Committee ofMinisters of the Council of Europe for the supervision and execution of judgementsand of the terms of friendly settlements in cases to which the Union is a party, adraft model of Memorandum of Understanding and a draft explanatory report to theAccession Agreement.

Even if a number of potentially time-consuming procedural steps still need to becompleted before the Union accession to the ECHR is to happen, agreement at thenegotiators level is nevertheless to be welcomed. From the moment that the negotia-tions started in 2010 and considering the change in the negotiations format in 2012,this is the furthest that the process has come until now.

The aim of this article is to give an overview of the negotiations and the AccessionAgreement. The article analyses briefly the most significant procedural innovationsput in place by the Accession Agreement, namely the co-respondent mechanism andthe prior involvement of the Court of Justice of the European Union (further referredto as ‘Luxembourg Court’). It also touches upon the next steps in the procedure.

2 Overview of the negotiations

2.1 Background

The accession of the Union required both the Council of Europe and the Union tomake changes in their respective legal systems to make accession possible.

From the Council of Europe side Protocol 14 was adopted on 13 May 2004 andentered into force on 1 June 2010. This Protocol allowed for the accession of theUnion by amending Article 59(2) of the ECHR.3

From the Union law perspective since the entry into force of the Lisbon Treatythere is an explicit legal obligation for the Union to accede to the ECHR as Article6(2) of the Treaty on the European Union (further referred to as ‘TEU’) states in clearimperative terms that the Union ‘shall accede’ to the ECHR.

Accompanying this Treaty change is Protocol 8 relating to Article 6(2) of TEU onthe accession of the Union to the ECHR. This Protocol sets out in greater detail theprerequisites from the Union law perspective in view of the accession.

The first requirement is that the Accession Agreement should preserve the spe-cific characteristics of the Union and of Union law, in particular with regard to (a)the specific arrangements for the Union’s possible participation in the control bodiesof the European Convention and (b) the mechanisms necessary to ensure that pro-ceedings by non-Member States and individual applications are correctly addressedto Member States and/or the Union, as appropriate.

2The latest texts are available at: http://www.coe.int/t/dghl/standardsetting/hrpolicy/Accession/Meeting_reports/47_1(2013)008rev2_EN.pdf (9 September 2013).3See http://conventions.coe.int/Treaty/EN/Treaties/Html/194.htm, entered into force on 1 June 2010(9 September 2013).

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This means, on the one hand, Union participation with a right to vote in the Coun-cil of Europe bodies such as the Committee of Ministers and the Parliamentary As-sembly as far as the ECHR related functions are concerned. The other aspect relatesto the new procedural mechanisms, the co-respondent mechanism and the prior in-volvement of the Luxembourg Court. In this context also the attribution clause, setout in Article 1(4) of the Accession Agreement, is relevant.

Secondly, Union accession should affect neither its competences, nor the powersof its institutions and should not affect the situation of the Member States in relationto ECHR and its protocols. This means that no new powers should be conferred onthe institutions and bodies of the Union as a result of the accession. The Union shouldbe liable for the ECHR violations only to the extent that its system of competenceswould have allowed for the adoption of the act or measure at issue. Preserving thesituation of the Member States vis-à-vis the ECHR and its protocols means that thescope of the Union’s commitments will be limited to the Union alone as a separatelegal entity under public international law. Not all Member States are bound by thesame extent to various Protocols and some Member States have made reservationsunder the ECHR or its Protocols. Thus the Union accession should not affect thelegal situation of the Member States in that respect.

Thirdly, the Accession Agreement should not affect Article 344 of the Treaty onthe Functioning of the European Union (further referred to as ‘TFEU’) which pro-hibits Member States from submitting disputes concerning the interpretation or ap-plication of the Union Treaties to any method of settlement other than those providedfor in the Union Treaties. Under Union law only the Luxembourg Court is competentto ensure compliance with the law in the application and interpretation of the UnionTreaties and also to resolve disputes concerning the interpretation and application ofUnion Treaties.4

2.2 Significance

As repeatedly pointed out by the civil society organisations in the course of negotia-tions, the central objective of the Union accession to the ECHR should be “to ensurethat the people of Europe enjoy more complete recognition and protection of theirhuman rights.”5

It was indeed important to remember this objective throughout the lengthy andsometimes very technical negotiations.

At present a citizen is deprived of the possibility to go to the European Court ofHuman Rights (further referred to as ‘Strasbourg Court’) once powers transferred tothe Union are at stake, which means that the Union cannot be brought to the Stras-bourg Court. In this context Union’s accession to ECHR will lead towards increased

4See TEU Article 19(1) and TFEU Article 344.5Submission of Amnesty International, the Aire Center and the International Commission ofJurists. Available at: http://www.coe.int/t/dghl/standardsetting/hrpolicy/accession/Working_documents/NGO_submissions_EU_accession_5Nov2012.pdf (9 September 2013). See also NGO briefing noteon the Accession Agreement and next steps: http://www.icj.org/joint-briefing-paper-on-eu-accession-to-the-european-convention-on-human-rights/ (10 September 2013).

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coherence and consistency. The Union subjects itself to external control exercisedby the Strasbourg Court triggered by an individual application. This means that anyperson claiming to be a victim of a violation of the ECHR by an institution or bodyof the Union will in the future be able to bring a complaint against the Union underthe same admissibility conditions as those applying to complaints brought againstMember States.

For the Union as a separate legal entity, the accession to ECHR will mean en-hanced accountability and credibility both internally and externally and will put inplace the “missing link”6 in the system of fundamental rights protection in Europe asa whole.7

In this context it is important to note that the Strasbourg court has already beendealing with cases linked to Union law8 and that accession will pave the way toattribute acts adopted by the Union institutions directly to the Union instead of tryingto work around the complexities of EU law in an indirect way.

Accession will also lead to increased contacts and more coherent case-law9 be-tween the Strasbourg Court and the Luxembourg Court concerning the implementa-tion of the ECHR through the so-called prior involvement mechanism.

2.3 Procedure

From the Council of Europe side, the Accession Agreement would need to be en-dorsed by the Committee of Ministers after the Parliamentary Assembly and theStrasbourg Court have given their opinions on it. It will ultimately have to be rati-fied by all the member countries of the Council of Europe.

From the Union perspective Article 218 of TFEU applies. Unanimity amongstMember States and the consent of the European Parliament are required. In addition,ratification by the Member States is needed for the entry into force since the decisionconcluding the Accession Agreement shall enter into force after it has been approvedby the Member States in accordance with their respective constitutional requirements.

Before the negotiations could begin and as the first step, the Member States ofthe Union had to agree on the negotiating mandate. Very shortly after the entry intoforce of the Lisbon Treaty, preliminary discussions started within the Council of theEuropean Union between the Member States.

In March 2010, the European Commission proposed a recommendation for aCouncil decision to authorize the Commission to negotiate the Accession Agree-ment. The Council Decision authorising the Commission to negotiate the accessionagreement and setting out the negotiating directives was adopted already on 4 June2010,10 which is very rapid considering the standard practices in the Union.

6Polakiewicz [9].7Weiss [11].8See Bosphorus v. Ireland, no 45036/98, ECHR 2005-VI and Matthews v. UK no 24833/94, ECHR 1999-I.See also Kuhnert [5] and Gragl [2].9On cooperation between the two courts and the ensuing mutual enrichments see Bratza [1].10Council document 10817/10 RESTREINT UE.

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The Decision constituted the formal mandate for the Union to negotiate, and nom-inated the Commission as the Union negotiator. The Working Party on Fundamen-tal Rights, Citizens’ Rights and Free Movement of Persons (further referred to as‘FREMP’), composed of the representatives of all Union Member States, was ap-pointed as the special committee within the meaning of Article 218 (4) of TFEU inconsultation with which the negotiations should be conducted.

Upon the adoption of the above-mentioned Decision, the Council of the EuropeanUnion made a declaration that in parallel with the accession negotiations, it woulddiscuss binding internal rules laying down modalities for the various aspects relatingto the Union accession to the ECHR. These rules should, in accordance with thedeclaration, be adopted before the conclusion of the Accession Agreement.11 I willrevert to the question of internal rules further below.

2.4 Negotiations

The Committee of Ministers of the Council of Europe adopted in May 2010 the termsof reference for CDDH “to elaborate, in cooperation with representative(s) of the Eu-ropean Union to be appointed by the latter, a legal instrument or instruments, settingout the modalities of accession of the European Union to the European Convention onHuman Rights.” The CDDH on its part entrusted this task to an informal group of 14experts (CDDH-UE 7 + 7). Seven experts were appointed in their personal capacityfrom EU countries and seven from non-EU countries.12

In the first phase of negotiations as from June 2010 the Commission, as the Unionnegotiator, conducted negotiations on behalf of the Union in the framework of theCDDH for the elaboration of a draft accession instruments in consultation—from theUnion perspective—with FREMP.

In June 2011 the CDDH-UE 7 + 7 group, after eight negotiating meetings withina year, finalised the draft agreement and submitted it to the consideration of the HighContracting Parties and the Union.13

In October 2011, after an initial period of reflection, it appeared that for the UnionMember States it was not possible to agree unanimously on the negotiated text.14

Accordingly, the negotiations in Strasbourg came to a standstill whereas discus-sions resumed in Brussels in FREMP in an effort to find a solution to the deadlock.Both the Polish (second half of 2011) and the Danish Presidencies (first half of 2012)put a lot of effort into finding a solution. These discussions were not easy not the

11Council document 16573/12, para 2 http://register.consilium.europa.eu/pdf/en/12/st16/st16573.en12.pdf(10 September 2013).12See the CDDH report of the 7th meeting, 15-18 June 2010, CDDH(2010)10, available at http://www.coe.int/t/dghl/standardsetting/cddh/Meeting%20reports%20committee/70th_en.pdf (9 September 2013).13For an analysis of the draft of June 2011, prepared in the 7 + 7 format, please see Groussot, Lock, Pech[3] and Lock [6].14See the report to the Committee of Ministers on the elaboration of legal instruments for the ac-cession of the European Union to the European Convention on Human Rights, CDDH (2011)09http://www.coe.int/t/dghl/standardsetting/hrpolicy/Accession/Meeting_reports/CDDH_2011_009_en.pdf(accessed on 9 September 2013).

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least because the overwhelming majority of Union Member States were in fact sat-isfied with the June 2011 CDDH-UE 7 + 7 draft and were not keen to re-open thenegotiations. However, unanimity in the Union context means that everyone had tobe on board.

Finally, in April 2012 the possible solutions negotiated in FREMP were broughtto the attention of Justice Ministers of the Union Member States. In April 2012 theJHA Council adopted guidelines15 on the basis of which it was possible for the Unionnegotiator to ask to resume negotiations in Strasbourg.

On 13 June 2012 the Committee of Ministers gave a new mandate16 to the CDDHto pursue negotiations with the Union in an ad hoc group “47 + 1”, in plenary ses-sions, instead of the informal expert group as previously.

In the second phase the 47 + 1 group held a total of five negotiating meetings andat the last session on 3–5 April 2013 agreement on the accession instruments wasreached at negotiators’ level.

For most countries the previous draft was an acceptable compromise package.There was reluctance to reopen that package. Once the negotiations resumed, coun-tries raised other issues to re-negotiate. The Union, from its side, had to make a newcase for the core legal aspects that had been previously agreed upon, such as the priorinvolvement of the Luxembourg Court and the Union having a voting right in theCouncil of Europe organs for ECHR related matters.

The second phase of negotiations was also characterised by extensive coordinationefforts by the non-EU countries to coordinate amongst themselves, culminating in apaper submitted by 16 non-EU countries,17 highlighting the issues on which in theirview re-negotiation was necessary, even if the concerns of individual countries weremore nuanced.18 This paper was presented at the same meeting where the Chair ofthe group had prepared her own compromise solutions.19 At this point there was alot of fatigue around the negotiating table and a sense of fear that negotiations mightbe blocked for a while or might even fail. Fortunately, this was not the case, even ifat the last negotiating session it was not certain until the very last day that agreementwas in sight. All negotiating partners had to show sufficient flexibility and move from

15Council document 8915/12 RESTREINT UE.16Decisions of the 1145th meeting of the Ministers’ Deputies (13 June 2012). Available at:http://www.coe.int/t/dghl/standardsetting/hrpolicy/Accession/Working_documents/47_1(2012)01_CM_Decision_BIL.pdf (accessed on 9 September 2013).17Common paper of Andorra, Armenia, Azerbaijan, Bosnia-Herzegovina, Iceland, Liecht-enstein, Monaco, Montenegro, Norway, Serbia, Switzerland, Russian Federation, Turkeyand Ukraine on major concerns regarding the Draft revised Agreement on the Acces-sion of the European Union to the European Convention on Human Rights. Available at:http://www.coe.int/t/dghl/standardsetting/hrpolicy/Accession/Working_documents_en.asp (accessedon 9 September 2013). During the meeting Georgia and Moldova associated themselves to the paper.18Report of the fourth negotiation meeting between the CDDH and the European Com-mission on the accession of the European Union to the European Convention on Hu-man Rights, 17–19 January 2013, Strasbourg, paragraph 2. Available at: http://www.coe.int/t/dghl/standardsetting/hrpolicy/Accession/Meeting_reports/Web_47_1(2013)R04_EN_final.pdf (accessedon 9 September 2013).19http://www.coe.int/t/dghl/standardsetting/hrpolicy/Accession/Working_documents/47_1(2013)001_EN.pdf (accessed on 9 September 2013).

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their starting positions. The Union had to give up some of its demands and non-EUcountries had to move closer towards the Union position.

3 Accession Agreement of 5 April 2013

3.1 General characteristics

With the Accession Agreement the Union accedes to the ECHR, to the first Proto-col and to Protocol No 6. Article 10(4) of the Agreement states that the Union willbecome a party to these instruments at the date of entry into force of the AccessionAgreement. The subsequent accession by the Union to other protocols would requireseparate accession.20

The Accession Agreements consists of a preamble and 12 provisions. In additionit should be read together with the other accession instruments, namely the draftdeclaration by the Union on certain aspects relating to the functioning of the co-respondent mechanism, a draft Rule to be added to the Rules of the Committee ofMinisters of the Council of Europe for the supervision and execution of judgementsand of the terms of friendly settlements in cases to which the Union is a party, a draftmodel of Memorandum of Understanding on the Union seeking leave to intervene incase an international agreement concluded by the Union is at stake (for example theAgreement on the European Economic Area) and a draft explanatory report to theAccession Agreement, providing useful insights to modalities of accession.

The Accession Agreement as adopted at negotiators’ level is quite open-ended andgeneral, especially when it comes to the functioning of the co-respondent mechanismand the prior involvement of the Luxembourg Court. However, in a situation wherethe autonomy of Union law needed to be preserved, while accomplishing its accessionto the ECHR within the existing Union Treaty framework, the only possible waywas to keep the Accession Agreement rather general. Any other solution would havehad the consequence of the Strasbourg Court being called to interpret Union law. Itshould also not be forgotten that the general rules of the Accession Agreement willbe supplemented by binding Union legal rules. Once adopted, these will govern theparticipation of the Union and its Member States in proceedings before StrasbourgCourt in situations where Union law is called into question.

An important principle in the negotiations was to preserve the current Strasbourgcontrol mechanism as far as possible with only minimum and strictly necessarychanges.

The Union should accede, as a matter of principle on an equal footing with otherContracting Parties, with the same rights and obligations.

However, it should be kept in mind that the Union is not a State, whereas the wholeCouncil of Europe system is designed by states and for states that are members of theCouncil of Europe. In addition, the Accession Agreement also needed to reflect on

20For a contrary view see Jacqué [4], p. 1003–1004, arguing that the Union should accede to all Protocolsthat refer to rights guaranteed by the Charter.

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the specific nature of the Union and the division of competences between the Unionand its Member States. Some adaptations were accordingly needed.

Most importantly, the co-respondent mechanism and the prior involvement of theLuxembourg Court should be mentioned in this context. These are the two proceduralnovelties put in place for Union accession to ECHR with the accession instruments,already in the draft of June 2011.

This article does not aim to give an exhaustive overview of all details of the Agree-ment. Instead I would like to speak elaborate briefly on the two procedural novelties,the co-respondent mechanism and the prior involvement of the Luxembourg Court.In addition I would briefly like to touch upon two other elements that were discussedin great detail in particular in the second round of negotiations, namely the attribu-tion clause, necessitated by the division of competences between the Union and theMember States, and the voting right of the Union in the Council of Europe bodies.

3.2 Co-respondent mechanism

Protocol 8 explicitly required the Accession Agreement to put in place a mechanismto make sure that applications are correctly addressed to Member States and/or theUnion as appropriate for the purposes of preserving the specific characteristics of theUnion and Union law

With the accession of the Union there will be a unique system that a legal act couldbe enacted by one High Contracting Party and implemented by another.21

From the perspective of the applicant it could be rather difficult to ascertainwhether it was the EU or the Member State that infringed his/her fundamental rights.

This specificity of Union law had to be taken into account in the course of nego-tiations in order to avoid gaps in the system, since the application could be declaredinadmissible if the choice of the defendant was not correct.

This concerns in particular secondary law acts adopted by EU institutions that mayneed further implementation at Member State level. In such instances the MemberState concerned is bound by Union law and has no margin as to whether to implementor not the Union act, even in the unlikely case that the legal act concerned violatesfundamental rights. Should a violation be found, the Member State concerned is alsounable to take responsibility for removing the violation. The co-respondent mecha-nism allows the Union to join the proceedings in such cases in which the applicanthas directed the application only against one or more Member States and it appearsthat such an allegation calls into question the compatibility with the ECHR rights atissue of a provision of Union (secondary) law.

It can also concern Union primary law, i.e. provisions of the Union Treaties, im-plemented by EU institutions, agencies, bodies and offices whereas it is the MemberStates that are the masters of the Union Treaties. The Union institutions, even if in-volved in the Union Treaty amendment process, are not able to revise Union Treatieson their own, should a provision thereof fall foul of ECHR. In such cases the co-respondent mechanism allows the Union Member States to join the proceedings asco-respondents in addition to the Union, if it appears that such allegation calls into

21For an analysis of the co-respondent mechanism as in the June 2011 Accession Agreement, see Lock [6].

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question the compatibility with ECHR rights at issue of a provision of Union primarylaw.

Accordingly the whole idea behind the co-respondent mechanism is that the partywho within the Union would bear responsibility for removing the violation is able toparticipate in the proceedings before the Strasbourg Court from the outset.22

The admissibility of an application shall be assessed without regard to the par-ticipation of a co-respondent even if from the moment the decision is taken, the co-respondent is considered to be a party to the proceedings.

The co-respondent mechanism should be clearly distinguished from third partyinterventions23 since the co-respondent is a party to the case and becomes so bya decision of the Strasbourg Court, whereas third party interventions do not createobligations to abide by final judgements. It should also be distinguished from caseswith multiple respondents. It is a unique system of shared responsibility, put in placefor the Union, because of the unique system of competencies between the Union andits Member States. As a result the co-respondent enjoys full procedural rights.

Some concerns have been expressed as to the voluntary nature of the co-respondent mechanism and negotiating partners sought reassurances in the courseof negotiations that when the conditions are met the EU would become a co-respondent.24 However, from the Union law perspective, if the Union was to becompelled to be co-respondent, then this would lead to the Strasbourg Court in-cidentally to interpret Union law in order to determine whether this was indeed aco-respondent specific situation. Nevertheless, to give additional guarantees to nego-tiating partners, the Union agreed to make a declaration that it would request to be-come a co-respondent to the proceedings or accept an invitation from the StrasbourgCourt to that effect where the conditions set out in Article 3(2) of the AccessionAgreement are met.25 This will in addition be supplemented by Union internal rules,which would specify how the co-respondent mechanism would be triggered.

In terms of legal effects the Accession Agreement makes it clear that the respon-dent and the co-respondent will be jointly responsible for the violation unless theStrasbourg Court decides that only one of them is to be held responsible. Again fromthe Union perspective this would have to be elaborated further in the internal ruleshow the Member States and the Union share responsibility internally.

22CDDH-UE(2011) 16, para 33.23In particular, in the negotiations it was discussed whether the co-respondent mechanism should be ex-tended to situations in which an application directed against a non-EU state puts into question the compat-ibility with ECHR of an international agreement between that state and the Union (e.g. the EEA Agree-ment). This issue will now be dealt with in a separate memorandum of understanding the model text ofwhich is a part of the package agreed since it was considered that in this instance it would be more appro-priate for the Union to intervene as a third party.24For instance para 12 of the report of the fourth negotiation meeting between the CDDH and the EuropeanCommission on the accession of the European Union to the European Convention on Human Rughts, 17–18 January 2013, Strasbourg.25See Appendix II in the final report, available at http://www.coe.int/t/dghl/standardsetting/hrpolicy/Accession/Meeting_reports/47_1(2013)008rev2_EN.pdf (9 September 2013).

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3.3 Prior involvement of the Luxembourg Court

Already in 2010, the Luxembourg Court prepared a discussion paper on certain as-pects of the accession of the Union to the ECHR. The paper stated that a mechanismhad to be available to ensure that the question of the validity of a Union act could bebrought effectively before the Luxembourg Court before the Strasbourg Court ruledon the compatibility of that act with the ECHR.

This was followed by the Joint Communication from the Presidents of the Stras-bourg Court and the Luxembourg Court on 24 January 2011,26 considering that aprocedure should be put in place, in connection with the accession of the Union tothe ECHR. That procedure should be flexible and should ensure that the LuxembourgCourt may carry out an internal review before the Strasbourg Court carries out anexternal review.

Prior involvement of the Luxembourg Court is related to the co-respondent mech-anism, since prior involvement of the Luxembourg Court only arises in cases wherethe Union is a co-respondent and where the violation thus rests on a provision ofUnion law.

Its aim is to give the Luxembourg Court an opportunity to look at the compatibilityof an act with fundamental rights defined at the level of the Union in cases before theStrasbourg Court where the conformity with ECHR of an act of the Union institution,body, office or agency is at stake.

Under TFEU Article 267 national courts, applying Union law, should bring anyquestions related to the validity and interpretation of acts of institutions, bodies, of-fices or agencies of the Union to the Luxembourg Court via the preliminary refer-ence procedure, including cases where the acts in question could violate fundamentalrights. The parties to proceedings in national courts can suggest that the court makessuch a reference, however, there is no obligation for the national court to do so.27

Accordingly Article 3(6) of the Accession Agreement foresees that if the Luxem-bourg Court has not yet assessed the compatibility with the rights at issue as definedin the ECHR of the provision of the Union law, sufficient time will be afforded forthe Luxembourg Court to make such an assessment and thereafter for the parties tomake observations to the Strasbourg Court.

This relates to the prerogative of the Luxembourg Court to declare Union actsinvalid. It also relates to the more general principle that the control mechanism estab-lished by the ECHR is subsidiary to the system of safeguarding human rights at thelevel of the contracting parties.

Accordingly prior to accession the Union should put in place a procedure thatenables proceedings to be brought before the Luxembourg Court to that effect. TheUnion from its side should ensure that such an assessment is made quickly so that theproceedings before the Strasbourg Court are not unduly delayed. However, if priorinvolvement was ever to happen, the case is likely to raise complex legal issues. Inthat instance, speed cannot be the only consideration.

26Both documents are available on the website of the CJEU under Institution/Various documents athttp://curia.europa.eu/jcms/jcms/P64268/ (17 June 2013).27See also Gragl [2], p. 274, concluding that a request for a preliminary ruling is not a necessary pre-requisite under Article 35(1) of the ECHR.

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The Accession Agreement does not elaborate on this new procedure and thereforemost of the features of the new system would have to be put in place by the Unioninternal rules. The internal rules should define the appropriate moment when the pro-ceedings should be brought, admissibility conditions, scope of the Luxembourg Courtassessment, actors entitled to initiate and to participate in proceedings, delays in pro-ceedings, consequences of the Luxembourg Court decision for proceedings beforethe Strasbourg Court and so on.

With regard to the prior involvement of the Luxembourg Court it has been arguedthat making the mechanism work internally might require Treaty change.28 Nothingcan be said on this until the Luxembourg Court has given its opinion on the AccessionAgreement but works have progressed on the presumption that no Treaty change wasnecessary and that the Union internal rules would have to lay down the modalities ofsuch an accelerated procedure. This is supported by the fact that the Treaty frameworkas it currently stands also lays down the obligation to accede for the Union and alsostates unequivocally that the powers of the institutions, including the LuxembourgCourt, are not to be affected.

3.4 Attribution clause

One of the main features of the Union law is that as a general rule it is the MemberStates that implement Union law. In most cases this means that the Member Statesare obliged either to perform certain acts or take measures or to refrain from doing soand do not have a choice whether to apply or not Union law.

With the accession of the Union the Strasbourg Court will be faced with a uniquesystem that a legal act could be enacted by one High Contracting Party and imple-mented by another.29 It is important in such cases to determine responsibility.

The Accession Agreement Article 1(4) provides for an attribution clause. The pur-pose of the attribution clause30 is to make clear that the acts, measures and omissionsof Member States remain attributable only to them even if they are acts of implemen-tation of EU law. In accordance with this general attribution rule an act, measure oromission of organs or agents of a Member State of the EU shall be attributable onlyto that State, even if such an act, measure or omission occurs when the state imple-ments the law of the Union. This should be seen differently from the responsibilityunder the co-respondent mechanism. It can be perfectly feasible that the Union and

28For more on this, please see Lock [7], Ritleng [10] and Gragl [2].29For an analysis of the co-respondent mechanism as in the June 2011 Accession Agreement, see Lock [6].30Article 1(4): ‘For the purposes of the Convention, of the Protocols thereto and of this Agreement,an act, measure or omission of organs of a member State of the European Union or of persons actingon its behalf shall be attributed to that State, even if such act, measure or omission occurs when theState implements the law of the European Union, including decisions taken under the Treaty on theEuropean Union (hereinafter referred to as “the TEU”) and under the Treaty on the Functioning of theEuropean Union (hereinafter referred to as the “TFEU”). This shall not preclude the European Union frombeing responsible as a co-respondent for a violation resulting from such an act, measure or omission, inaccordance with Article 36, paragraph 4, of the Convention and Article 3 of this Agreement.’ Available at:http://www.coe.int/t/dghl/standardsetting/hrpolicy/Accession/Meeting_reports/47_1(2013)008rev2_EN.pdf (9 September 2013).

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the Member States take responsibility for a violation even if the act is attributed toonly one of them.

Conversely, EU responsibility for acts, measures and omissions of the EU insti-tutions, bodies, offices or agencies, or of persons acting on their behalf cannot beexcluded, meaning that acts, measures and omissions of the EU institutions, bodies,offices or agencies, or of persons acting on their behalf are attributable to the Unionin whichever context they occur.

In addition to the general attribution clause, the Union sought to have a specificattribution clause relating to the CFSP which would make sure that the StrasbourgCourt would not attribute to the Union an act which would not be attributable to theUnion under its own legal system, resulting in asymmetry in jurisdiction.31 The morespecific attribution rule proposed by the EU to deal with issues related to CFSP inaccordance with TFEU Article 275 was seen by some third countries32 as a carve-out of a politically sensitive area and a restriction from the jurisdiction of StrasbourgCourt. On the contrary, the general attribution rule was acceptable to third countries.In the final round of negotiations a clarification was added to the general attributionrule that the reference to the law of the Union included Council decisions under TEU(meaning also CFSP decisions).

Accordingly, acts, measures or omissions of organs or agents of a Member Statewill be only attributable to that Member State, even when implementing a CFSP deci-sion. The Union could become a co-respondent in such cases and with co-respondentsbeing jointly responsible for the violation, it will then be for the Union internal rulesto lay down how to handle this internally.

In fact in cases such as Behrami and Saramati33 in which the Strasbourg Courtdecided on the attribution of extra-territorial acts or measures by contracting par-ties operating in the framework of an international organization, for the purposes ofECHR, of such acts either to the international organization concerned or its members,there was no specific rule on attribution.34

Therefore it is doubtful whether the Strasbourg Court would apply its old case-law to the EU CFSP in the light of the new attribution clause and the existence of theco-respondent mechanism.

3.5 EU participation in the Council of Europe bodies

Granting the Union the voting right as such and the exercise of the Union voting rightwere both items that were debated heavily in the course of the negotiations.

31Under Article 275 of the TFEU the Luxembourg Court has no jurisdiction with respect to the provisionsrelating to the CFSP nor with respect to acts adopted on the basis of those provisions. The only exceptionis to review the legality of decisions providing for restrictive measures against natural or legal persons. Seealso Jacqué [4], p. 1005.32See paragraph 7 of the meeting report of the third negotiating session, 7–9 November 2012. Availableat: http://www.coe.int/t/dghl/standardsetting/hrpolicy/Accession/Meeting_reports/47_1(2012)R03_EN_final.pdf (9 September 2013).33Grand Chamber decision of 2 May 2007 on application no. 71412/01, Agim Behrami and Bekir Behramiagainst France and on application no. 78166/01 Ruzhdi Saramati against France, Germany and Norway.34See also Mujezinovic Larsen [8].

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Until now in the Council of Europe context there was no need to distinguish be-tween the functions of the Committee of Ministers under the ECHR and its otherfunctions as an organ of the Council of Europe.

The ECHR explicitly confers a number of functions upon the Committee of Min-isters of the Council of Europe, the main one being the supervision of the executionof the Strasbourg Court’s judgments under Article 46 of the ECHR and of the termsof friendly settlements under Article 39 of the ECHR.

The Committee of Ministers is also entitled to request advisory opinions fromthe Strasbourg Court on certain legal questions concerning the interpretation of theECHR and the Protocols (Article 47) and to reduce, at the request of the Strasbourgplenary Court, the number of judges of the Chambers (Article 26, paragraph 2).

The Committee of Ministers also carries out other functions in relation to theECHR such as the adoption of protocols and other documents (recommendations,resolutions, declarations etc.) relating to the ECHR.

The current practice within the Council of Europe has been to grant voting rightsin the Committee of Ministers to member countries of the Council of Europe only. Inaccordance with the principle of equal footing it was agreed that the Union, even ifnot a member of the Council of Europe, would have a voting right in the Committeeof Ministers when the latter exercised ECHR based functions, once it becomes a partyto the ECHR.

The first question that needed to be resolved in that context was for which typesof decisions the Union would have a voting right.

Some countries questioned whether the Union should have a voting right for the“statutory” functions of the Committee of Ministers, considering this to be contraryto the way the Committee of Ministers worked. In the view of these countries, Unionparticipation in the Committee of Ministers should be restricted to those functionswhich the ECHR explicitly attributes to it.35

To overcome these difficulties the Accession Agreement gives a voting right to theUnion for all functions specifically mentioned in the ECHR. In addition, the Acces-sion Agreement will add a new paragraph to Article 54 of the ECHR providing anexplicit legal basis for the Committee of Ministers to adopt protocols to the ECHR,i.e. “conventionalising” that function of the Committee of Ministers.

As a consequence, the Union would not have a voting right in decisions concerningother matters, not mentioned explicitly in the ECHR. This concerns, for examplerecommendations, declarations or resolutions relating to the ECHR or to any protocolto which the Union is a party.

The second question is related to the exercise of Union voting rights. The estab-lished practice of the Committee of Ministers is that decisions are adopted by consen-sus, with formal votes only exceptionally being taken. It was consistently raised inthe negotiations that Union accession should not lead to a major change in the work-ing methods of the Committee of Ministers. Nevertheless, the majority view was thatrules were needed exactly for possible exceptional situations, even if as normal prac-tice consensus would prevail.

35See para 12 of the report of the second negotiation meeting between the CDDH and the EuropeanCommission on the accession of the European Union to the European Convention on Human Rughts,17–19 September 2012, Strasbourg.

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The default rule that applies to decisions of the Committee of Ministers is con-tained in Article 20.d of the Statute of the Council of Europe and it requires a two-thirds majority of the representatives casting a vote and of a majority of the represen-tatives entitled to sit on the Committee.

However, upon accession the Union and its Member States would have 29 votesout of 48.

Understandably this majority raised concerns amongst the non-EU countries ofthe Council of Europe, in particular as regards decisions that could be potentially‘disadvantageous’ to the Union. The fear was that the Union and its Member Stateswould coordinate their votes for example in situations where the Committee of Min-isters was monitoring the execution of judgments by the Union or one of its MemberStates.

Several options were considered in the context of negotiations, seeking to limit thatrisk. For example, the June 2011 draft contained a specific rule for cases where theCommittee of Ministers supervised the fulfilment of obligations either by the Unionalone, or by the Union and one or more of its Member States jointly. To make sure theCommittee of Ministers effectively exercised its functions in those circumstances bycalculating majorities on the basis of the votes of non-EU Member States. However,after reflection this was not acceptable to the Union.

Therefore it was necessary to devise a solution that would take into account theconcerns of the Union as well as of the third countries.

What followed were lengthy discussions with some novel options on the negoti-ating table. For example, the Union proposed a gentlemen’s agreement and a panelmediation procedure, which were not accepted by the non-EU partners. Differentlevels of majorities and minorities were discussed.36

The prevailing solution is a rather complex system combining different majoritiesand minorities.

In particular, for all decisions for which no specific voting rules have been laiddown, the default rule of two-thirds majority of the representatives casting a voteand of a majority of the representatives entitled to sit on the Committee laid downin Article 20d of the Stature of the Council of Europe applies. For example, interimresolutions would be adopted with this majority.

Where the Committee of Ministers supervises the fulfilment of obligations eitherby the Union or by the Union and one or more of its Member States, i.e. cases wherethe Union has been a respondent or a co-respondent, a system of hyper-majorities andhyper-minorities for different types of decisions applies.

In this context, a majority of four fifths of the representatives casting a vote anda majority of two thirds of the representatives entitled to sit on the Committee arerequired for the adoption of final resolutions (supervision of judgments and friendlysettlements).

As regards referrals to the Strasbourg Court for the interpretation of a judgmentand infringement proceedings the solution proposed is that a “hyper-minority” of one

36See para 14 of the report of the second negotiation meeting between the CDDH and the EuropeanCommission on the accession of the European Union to the European Convention on Human Rughts,17–19 September 2012, Strasbourg.

The accession of the European Union to the ECHR 571

quarter of the members entitled to sit on the Committee of Ministers shall be requiredto consider as adopted a decision under such rules.

Concerning procedural decisions and decisions requesting information, a hyper-minority of one fifths of the representatives entitled to sit on the Committee is re-quired.

Last but not least, there’s a consultation mechanism for decisions not explicitlyforeseen in the ECHR in the adoption of which the Union has no voting right.37

On a final note, as far as supervision of judgments of obligations under ECHR byone or more Member States of the Union or by a non-EU country is concerned, thenthe paragraphs 91 and 92 of the explanatory report clarify that in these circumstancesthe Union Member States have no obligation to act in a co-ordinated manner andtherefore can express their own position and vote.

4 Next steps

As I already mentioned in the beginning of this article, there are still political andlegal hurdles to be overcome before accession can become a reality. Most countriesemphasised at the last negotiating meeting that internal procedures would have to becompleted in all countries before the final adoption of the instruments.38

From the Union perspective this means in the first phase transmitting the text to theLuxembourg Court to seek its opinion on the compatibility of the envisaged agree-ment with the Union Treaties in accordance with Article 218(11) of the TFEU. Thishappened at the request of the Commission at the beginning of July 2013. It is not yetcertain how long the Luxembourg Court will take to discuss the agreement. It is alsonot a given that the Luxembourg Court will find that the Agreement is compatiblewith the Treaties. If the opinion is adverse, then adjustments would have to be madeand the procedure needs to re-start.

In the positive scenario that the Luxembourg Court endorses the Agreement fromthe Union’s side, the Council of the European Union, upon a proposal from the Com-mission, would have to adopt unanimously the decision authorizing the signature ofthe Accession Agreement. The adoption of that decision would be preceded by unan-imous agreement on the Union internal rules, a pre-condition that is crucial to allMember States. In the last phase ratification at national level in accordance with therespective constitutional requirements would follow. As with any act to be adoptedby unanimity, these will not be easy negotiations and are bound to take time.

At this stage it is also still open when and how the Union will agree on the internalrules and what the content will be.

37See the final report CDDH 47 + 1(2013)008 for further details. Available at: http://www.coe.int/t/dghl/standardsetting/hrpolicy/Accession/Meeting_reports/47_1(2013)008_final_report_EN.pdf (9 September2013).38Report of the fifth negotiation meeting between the CDDH and the European Commis-sion on the accession of the European Union to the European Convention on Human Rights,3–5 April 2013, Strasbourg, paragraph 16. Available at: http://www.coe.int/t/dghl/standardsetting/hrpolicy/Accession/Meeting_reports/Web_47_1(2013)R05_EN.pdf (9 September 2013).

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As with any legislative instrument there would have to be a Commission proposalfirst, before the Member States can start negotiating and agreeing.

At this stage it is not yet clear what legal instrument the Commission would pro-pose and on which legal basis.

One could speculate about the possible legal bases but the fact is that until there isa Commission proposal, it is not possible to discuss in detail the form and drafting ofthese rules.

Since as seen above the functioning of the prior involvement and co-respondentmechanism is to a large extent to be determined by the internal rules, in substance cer-tain elements of internal rules have already been examined in very broad terms in themargins of FREMP. However, until there is a politically endorsed text on which theLuxembourg Court has given its assessment on the compatibility with the Treaties, itis unlikely that there would be a formal Commission proposal.

The internal rules, which, considering the available legal bases, would quite likelyneed to be agreed on by unanimity, raise complex legal issues, as shown above. Atthis stage there are no definite answers, as seen above, but there are many questionsto which answer will have to be found and by unanimity amongst the 28 MemberStates for that matter.

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2. Gragl, P.: The Accession of the European Union to the European Convention on Human Rights.Modern Studies in European Law, vol. 39. Hart, Oxford (2013)

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9. Polakiewicz, J.: EU law and the ECHR—will the EU accession to the European Conven-tion on Human Rights square the circle? Available at: http://www.coe.int/t/dghl/standardsetting/hrpolicy/Accession/Accession_documents/Oxford_18_January_2013_versionWeb.pdf (9 September2013)

10. Ritleng, D.: The accession of the European Union to the European Convention on Human Rightsand Fundamental Freedoms: a threat to the specific characteristics of the European Union andUnion Law? University of Uppsala, Faculty of Law Working Paper (1), (2012). Available at:http://uu.diva-portal.org/smash/record.jsf?pid=diva2:526830 (17 June 2013)

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