Article 6(2) of the 2009 Lisbon Treaty EUR-Lex – 12008M006 – EN establishes the following obligation: “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.” Article 59 (2) of the ECHR, as amended by Protocol 14 which entered into force in 2010 library_collection_p14_ets194e_eng, provides that “the European Union may accede to this Convention”.   However, the question of EU accession to the ECHR predates both treaties by several decades, with political pronouncements going back as early as the 1970s.  The political path to accession has at times been fraught, but its legal significance has only grown, with the proliferation of legal and policy protections for rights across Europe.  

In April 2013, EU and Council of Europe negotiators reached an agreement on the EU accession to the ECHR; but on the 18^th  December 2014, the Court of Justice of the EU (“CJEU”)  issued Opinion 2/13 declaring the agreement be incompatible with the EU Treaties.  The Court stated that the Agreement failed to adequately recognise the specific characteristics arising from the very nature of EU law and its autonomy, identifying eleven issues that had to be addressed, among them Common Foreign and Security Policy (“CFSP”).  In March 2023, a revised draft accession agreement was concluded addressing many of the issues raised in Opinion 2/13 although not CFSP, which the EU signalled it would deal with internally.

Article 24(1) TEU limits CJEU jurisdiction over CFSP except for: (i) compliance with Article 40 TEU (delineation of CFSP competences and external competences in TEFU) and (ii) Article 275 TFEU which gives CJEU jurisdiction over sanctions. Accession could have led to a situation where a CFSP measure under EU law could be challenged before the Strasbourg court alleging a violation of the ECHR without the CJEU having the jurisdiction to review and address the matter within the parameters of EU law. This could have resulted in judicial review of CFPS by the ECtHR and not the CJEU, a situation the latter deemed impermissible under EU law. One simple though unrealistic solution might have been to amend the treaty to remove the limitations on CJEU jurisdiction. An interpretative solution emerged in the opinion of Advocate General Ćapeta in joined cases C-29/22 P and C-44/22 P (KS and KD) relating to the appeal of two General Court orders denying jurisdiction over Article 340 (2) TFEU claims alleging human rights violations in the context of the EULEX mission in Kosovo.  The AG opined that the CJEU had the power to assess the EU fundamental rights compatibility of national measures adopted pursuant to CFSP decisions: CJEU review “could not be excluded simply because that breach occurred in the context of the CFSP’’.  At the same time, she argued that the CJEU lacked jurisdiction to interpret the underlying CFSP measure or assess conformity of CFSP provisions with the EU Treaties.

On the 10^th of September 2024 the CJEU issued its ruling in the case EUR-Lex – 62022CJ0029 – EN – EUR-Lex.  The Grand Chamber ruled that the CJEU has jurisdiction to assess the legality of acts or omissions under CFSP that are not directly related to political or strategic choices, but relate to operational aspects, such as personnel choices, the establishment of review measures and remedies, including actions for damages for alleged violations of fundamental rights. In the instant case, the Court found that the absence of a remedy or judicial review was not a measure directly related to political or strategic choices of CFSP. The judgment thus sought to balance preserving the autonomy of the EU legal order and providing effective judicial protection and access to justice in line with the standards of the ECHR. With respect to accession, the ruling confirms CJEU jurisdiction in the area of CJEU addressing a key obstacle previously identified by the Court in Opinion 2/13, and thereby removing what many had viewed as the last significant hurdle to the resumption of negotiations.  Of course, the text of the Agreement must still be ratified by all 46 Council of Europe members and the EU, and will almost certainly be put before the CJEU again for its opinion, pursuant to the procedure in Article 218(11) TEU.  Still, the  ruling is significant in and of itself. To the extent it revives the prospects of accession, it offers the promise of greater legal accountability by ensuring that the EU will be subject to external international human rights oversight. Despite the qualitative differences between the EU and ECHR frameworks – supranational vs. international – and the different coverage of rights, there exists sufficient substantive overlaps between the rights protected for accession to have an impact in EU Member States. In particular, it should help address fragmentation and ensure that gaps or tensions between EU and ECHR standards are addressed, including by national courts, thereby promoting consistency between EU and ECHR laws.  Ultimately, accession will advance legal and policy coherence for rights in Europe at a time when this is much needed.

Siobhán McInerney-Lankford – this contribution is written in the author’s personal capacity and the views it expresses should not be attributed to the EU FRA.