Abstract
The contribution sketches the several ways in which the European Convention of Human Rights affects the operation of European Union law.
Introduction
This contribution discusses the role played by the European Convention of Human Rights (hereafter: ECHR or Convention), and by the judgments of its Court, in the EU legal order, while leaving aside an important part of that role which is examined elsewhere in this special issue, namely the way in which the Court of Justice of the EU (CJEU) refers to the ECHR when interpreting the EU's Charter of Fundamental Rights. Apart from its current use by the CJEU, the Convention has four functions in the EU legal order, and this article will discuss them in turn: the ECHR became a ‘semi-binding’ source of fundamental rights within the EU legal order, both before and after the Lisbon Treaty; the ECHR acts as a reference point in EU legislation; the ECHR acts as a normative standard in the EU's external and enlargement policy; and the ECHR is a source of law for national authorities and courts when applying EU law.
The ECHR as a semi-binding source of fundamental rights in the EU legal order
Before the entry into force of the Lisbon Treaty, in December 2009, the EU’s own human rights catalogue, the EU’s Charter of Fundamental Rights, had a weak legal status as it had been adopted by way of a mere ‘solemn declaration’ of the presidents of the main EU institutions. The CJEU had therefore continued to protect fundamental rights as unwritten general principles of EU law. In order to give concrete meaning to those unwritten norms, the Court found inspiration in existing written catalogues of fundamental rights. That inspirational role was overwhelmingly granted to one single human rights treaty, namely the ECHR. In the course of the years, there had been a clear crescendo in the attention given by Luxembourg to the ECHR and its court. Allan Rosas, a judge at the Court of Justice, noted the following stages in the case law of his court: fundamental rights outside the competence of the Court; fundamental rights as part of the general principles of Community law (since 1969); explicit reference to the ECHR (since 1974); characterization of the ECHR as having ‘special significance’ (since 1989); and reference to individual judgments of the European Court of Human Rights (since the 1990s).
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it should be recalled that, according to settled case-law, fundamental rights form an integral part of the general principles of law the observance of which the Court ensures, and that, for that purpose, the Court draws inspiration from the constitutional traditions common to the Member States and from the guidelines supplied by international treaties for the protection of human rights on which the Member States have collaborated or to which they are signatories. The ECHR has special significance in that respect.
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Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union's law.
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However, the Court of Justice did not understand the wording of Article 6(3) TEU in this way. It often notes in its judgments that the Convention ‘does not constitute, as long as the European Union has not acceded to it, a legal instrument which has been formally incorporated into European Union law.’ 4 As a consequence, it treats the ECHR as an external source of human rights protection that does not bind the EU. The Court reiterates this view, in particular, when national courts formulate preliminary questions of interpretation or validity that refer to the ECHR. In answering those preliminary questions, the ECJ either ignores the fact that they are formulated with reference to the ECHR, or starts by correcting the national court. Take for example the Ordre des barreaux case of 2016, in which the Belgian Constitutional Court referred a question on the validity of VAT Directive 2006/112 because that directive required the Member States to terminate the VAT exemption for lawyers. The referring court wondered whether this was compatible with the right to an effective remedy and the principle of equality of arms as protected, not only by Article 47 of the Charter, but also by Article 6 ECHR and Article 14 of the International Covenant on Civil and Political Rights (ICCPR). The CJEU started its ruling by the sentence mentioned above, namely that the ECHR ‘does not constitute, as long as the European Union has not acceded to it, a legal instrument which has been formally incorporated into EU law’, and the same applied obviously to the ICCPR. ‘Accordingly’, the Court added, ‘an examination of the validity of Directive 2006/112 must be undertaken solely in the light of the fundamental rights guaranteed by the Charter.’ 5 It then analysed the question in the light of Article 47 CFR and did not consider at all Article 6 of the ECHR or the case law of the Strasbourg Court. In doing so, the Court implicitly denied that the ECHR is now binding on the EU in the form of general principles of EU law, as the text of Article 6 TEU could seem to suggest. 6
One might say that the position adopted by the ECJ confuses two separate legal questions: the question whether the European Union is bound by the ECHR under international law (it is not, since it has not signed and ratified the Convention) and the question whether the ECHR is binding for the EU institutions as a matter of European Union law (this would seem to be the case in view of the wording of Article 6 TEU). A parallel argument can be made with regard to the Geneva Convention Relating to the Status of Refugees. The European Union is not a party to that convention, so that the European Union, as an international subject, is not bound by it; but the Convention has been made binding internally for the EU institutions when developing their asylum policy, by means of Article 78(1) TFEU. 7 Similarly, the ECHR could have been considered to be binding internally for the EU institutions because of the straightforward wording of Article 6 TEU.
The wish of the CJEU to keep the ECHR at arm’s length allows it flexibility in deciding to refer to the ECHR, and to the judgments of the ECtHR, when it considers this to be useful, and omitting such references in other cases. This does not mean that the Court is systematically diffident towards the ECHR and its court. The CJEU actively engages with the ECHR, often cites judgments of the ECtHR and carefully avoids to act in open contrast with the Strasbourg court, but it does not recognize the Convention as a binding source of law within the EU legal order.
The ECHR as a reference point in EU legislation
The standard sentence in the preamble of EU legislative acts that might affect the exercise of fundamental rights is the following: ‘This Regulation (or Directive) respects fundamental rights and observes the principles recognized by the Charter of Fundamental Rights.’ Sometimes, this standard phrase is followed by a sentence specifying which rights in particular are being respected. For example, the Regulation on the use of the Schengen Information System in the field of border checks contains, in one of its recitals, a specific reference to the right to data protection in Article 8 of the Charter, 8 whereas the Asylum Procedures Directive refers to eight provisions of the Charter, 9 and the Directive on combating trafficking in human beings mentions a dozen of different fundamental rights. 10 These standard phrases signal that the EU institutions are aware of the fundamental rights implications of their legislative acts and that they consider to have made the right choices in this respect. These standard phrases do not appear in the operational part of legislative acts and there is never any reference to the ECHR. Occasionally, however, fundamental rights clauses appear in the operational part of EU legislation, as in Article 4 of the Schengen Borders Code which states that the Member States must comply with the Charter and the Geneva Convention when applying the Code, 11 but the ECHR is not mentioned there either.
The ECHR was occasionally mentioned as a baseline or standard of fundamental rights protection in EU legislation pre-dating the Lisbon Treaty (and, thus, pre-dating the recognition of the EU Charter of Rights as part of primary EU law). Examples from that period include the Framework Decision on combating racism of 2008 12 and the Data Retention Directive of 2006 (which was later invalidated by the CJEU). 13 Since the Lisbon Treaty’s entry into force, references to the ECHR in the text of EU legislation have become rarer. One of those rare examples is the Asylum Procedures Directive of 2013 whose Article 39 deals with the concept of European safe third country to which asylum applicants can be returned without an examination of their claim. Its paragraph 2 states that a third country can only the considered as a safe country where it has ratified the ECHR and observes its standards, ‘including the standards relating to effective remedies’. 14 This formulation excludes the return to those neighbouring countries, such as Morocco or Tunisia, that have not ratified the ECHR for the simple reason that they are not eligible to become parties to the Convention.
There is one policy domain, though, in which the ECHR permeates the EU's legislative activity, namely the harmonization of criminal procedure. The directives that have implemented the EU's Roadmap 15 in this field have the stated aim of developing the general fair trial guarantees contained in Articles 5 and 6 of the ECHR in order to facilitate criminal justice cooperation between the EU Member States. The preamble of the Directive on the right to information in criminal proceedings (one of the instruments of this harmonization programme) states this ambition in the following terms: ‘Although all the Member States are party to the ECHR, experience has shown that that alone does not always provide a sufficient degree of trust in the criminal justice systems of other Member States. Strengthening mutual trust requires detailed rules on the protection of procedural rights and guarantees arising from the Charter and from the ECHR.’ 16 This Directive, like the other directives harmonizing criminal procedure, seeks to confer the special legal force of EU law to the rights of the Convention as well as to flesh out the guarantees contained in the Convention, as interpreted by the ECtHR. The effect of the Convention within EU law is further bolstered by the inclusion, in the body of the Directive, of a so-called non-regression clause, affirming that ‘[n]othing in this Directive shall be construed as limiting or derogating from any of the rights or procedural safeguards that are ensured under the Charter, the ECHR, other relevant provisions of international law or the law of any Member State which provides a higher level of protection.’ 17
The fact that the ECHR is rarely mentioned in the text of an EU legislative act does not necessarily mean that it was completely ignored in the preparation of those acts. Compliance with fundamental rights is expressly mentioned in the Better Regulation toolbox, a massive document of 614 pages that gives guidance for the impact assessments that precede all important EU legislation. 18 Tool No. 29 of that toolbox deals with the need to consider fundamental rights when evaluating the impact of envisaged legislation. It refers principally to the EU Charter of Rights, but adds that ‘to develop a deeper understanding of any fundamental right guaranteed by the Charter, the case law of the Court of Justice of the EU, (and) of the European Court of Human Rights should be consulted.’ It is not further explained how that consultation of the Convention's case law should take place, and it is not clear whether it happens on a regular basis.
The Convention is not very visible either in the EU's funding instruments. The Citizens, Equality, Rights and Values programme, which is the EU’s main funding instrument for the promotion of fundamental rights, has as one of its objectives the protection and promotion of the rights in ‘the Charter and the applicable international human rights conventions’; 19 the latter notion presumably includes the United Nations Convention on the rights of persons with disabilities and the Istanbul Convention on preventing and combating violence against women and domestic violence, as these two instruments are mentioned in the preamble, whereas the ECHR does not appear anywhere in either the main text or the preamble of the Regulation. The need to respect fundamental rights is also included in other, not rights-specific, funding instruments of the Union, most clearly in the Regulation laying down common provisions for eight among the most important EU funding instruments. It contains a ‘conditionality clause’ that requires the Member States to respect the Charter for obtaining access to the EU funds. 20 The ECHR is not mentioned there but the requirement to respect the ECHR is exceptionally mentioned in the specific act relating to one of those eight funds, namely the Internal Security Fund. 21
The ECHR does appear, though, in a rather unexpected corner, namely in the Commission's annual Rule of Law Report. In the latest two instalments of that report, the Commission includes an assessment of the implementation of ECHR leading judgments by each of the EU Member States. The Commission does so on the ground that a country’s record of implementing ECtHR judgments addressed to it ‘is an important indicator for the functioning of the rule of law in a country.’ 22 So the Commission does not examine the substantive compliance of the Member States with the ECHR but rather (and only) the way in which they implement judgments finding violations of the Convention. The basis for including this assessment in the report is the Commission's general responsibility to prevent and address rule of law problems under Article 7 TEU, and it does not involve a claim that the Convention itself is binding on the Member States as a matter of EU law. Still, by exposing the failure of the Member States to live up to their Convention obligations, the Commission's reports give modest support to the effective application of the ECHR.
The relative lack of references to the Convention in the EU's institutional practice is not, as such, a reason for great concern. The Convention does not need to be mentioned in EU legislation or other EU measures as long as the Charter of Rights is applied both by the EU and by the Member States in a way that corresponds to the requirements of the Convention and takes into account the case law of the ECtHR. But can we really trust that this will happen if the ECHR is nowhere mentioned in the text of rights-sensitive EU laws?
The ECHR as a normative standard in the EU's external and enlargement policy
The standard human rights clause, which the Union included in most of the broad international agreements concluded with third countries since the mid-1990s (but not in the agreements dealing with specific questions), states that respect for democratic principles and human rights, as laid down in the Universal Declaration of Human Rights or other relevant international human rights instruments, constitutes an ‘essential element’ of the agreement. This is the basis for the European Union's right to unilaterally suspend the operation of the agreement in case of non-respect for human rights. 23 The EU is careful not to impose extraneous human rights standards on the other countries: the ‘relevant human rights treaties’ are the ones that both the EU and its treaty partner have ratified. The ECHR is specifically mentioned only in agreements with countries that are members of the Council of Europe, either in the main text (as in the Association Agreement with Ukraine 24 ) or in the preamble (as in the Surrender Procedure Agreement concluded with Iceland and Norway 25 ) – but the Trade and Cooperation Agreement with the UK does not expressly mention the ECHR in its generic fundamental rights clause of Article 763. 26
According to the same logic, the EU's unilateral external relations instruments do not mention the ECHR when they have a global reach. Thus, the EU’s main funding instrument for external relations, the ‘Global Europe’ programme, 27 while emphasizing the protection of human rights as one of its central objectives, carefully avoids naming the ECHR (and, indeed, any other particular human rights instrument). As for the GSP+ scheme, which grants the least developed countries special conditions of trade with the EU, it makes that benefit dependent on the effective implementation of 27 named international instruments, including a number of universal human rights treaties, but (naturally) not the ECHR. 28
In the course of preparation for accession to the EU, human rights became a central element of the elaborate political conditionality mechanism gradually set in place on the basis of the Copenhagen criteria adopted by the European Council in 1993. Human rights continue to be a central element in relation to the current candidates for accession, as illustrated in the annual reports devoted to those countries’ slow progress towards accession. The Commission applies a human rights standard to the candidate countries that is very broad, quite demanding but vaguely defined. Although the Copenhagen criteria refer to human rights in general terms and do not mention the Convention with so many words, it could seem obvious that compliance with the ECHR would form the primary standard for assessment in the context of accession to the EU, since the candidate states are all parties to the Convention. It is, therefore, rather surprising to see that the European Commission, in its Regular Reports on progress towards accession, does not much refer to the Convention. In its 2023 Communication on EU Enlargement Policy, there is a section on fundamental rights but the ECHR is not highlighted. 29 In the individual country reports, one finds often detailed and critical assessments of the fundamental rights situation in the country, but references to the ECHR and its case law occupy a minor place in those assessments, with the exception of the report on Türkiye, where the Commission notes the judiciary's refusal to implement some of the rulings of the ECtHR, requires that Turkish legislation and its implementation need to be brought in line with the ECHR and the ECtHR case law and mentions a number of cases of non-compliance. 30
In the EU's ‘horizontal’ human rights sanctions regime, adopted in 2020, the ECHR is mentioned as one among 12 ‘widely accepted instruments of international law’ that define the material scope of the sanctions regime. 31 Presumably, references to the ECHR will only appear in sanctions directed at countries that are parties to the ECHR and their nationals. Even so, the potential use of the ECHR as a benchmark for the imposition of sanctions against private individuals or firms could be seen as an interesting, albeit indirect, extension of the horizontal effect of the ECHR within the EU legal order.
The ECHR as a source of law for national authorities and courts applying EU law
National administrative authorities and national courts of EU countries are required to comply with the Convention even when they act within the scope of EU law. Whether a state's non-compliance with the ECHR, when implementing EU law, can be sanctioned in Strasbourg depends on the application of the Bosphorus doctrine of the ECtHR. However, that doctrine does not affect the obligation of those national courts to comply with the ECHR as a matter of their national constitutional law. National courts are thus, in most countries, required to comply both with EU law and with the ECHR and to disapply national laws that are incompatible with either of those two branches of European law. 32 This is true both for states where a monist attitude to the domestic effect of international law prevails, and for many of those adhering to the dualist tradition, such as Germany and Italy, where the ECHR has a privileged supra-legislative position, unlike other international treaties. In this manner, the ECHR plays a role in the EU legal order, in that the implementation and day-to-day application of EU law is subject, potentially, to an ECHR check. Think, for example, of the Urgenda case decided by the Dutch supreme court. That court held that Dutch climate legislation (which had been adopted, in part, to implement several EU directives) was in breach of the positive obligations of the Netherlands under the Convention. 33 In cases such as this one, the application of EU law within the legal order of its Member States is ‘coloured’ by the Convention.
Epilogue: the prospect of EU accession to the ECHR
The negotiation of a draft accession agreement of the European Union to the ECHR was finalized in March 2023. 34 The negotiation sought to address most of the issues which the CJEU had considered problematic in the previous draft accession agreement of 2013 and which had led it to prohibit accession. The negotiators left one issue to be resolved by the European Union itself, namely the question of how the ECtHR could review EU acts in the field of Common Foreign and Security Policy (since a general reservation excluding all CFSP measures from the jurisdiction of the ECtHR would be incompatible with the Convention). If this last hurdle is taken, and if the draft accession agreement is then signed and ratified by all the parties, the European Union would finally accede to the ECHR. Accession would modify the legal status of the ECHR within the EU legal order, as it would become a binding instrument of EU law and would subject EU acts to the jurisdiction of the Court in Strasbourg. One can imagine that, after accession, the CJEU would pay even closer attention than today to the ECHR and the case law of the ECtHR when interpreting and applying the EU’s own Charter of Rights, but accession would not necessarily make the Convention more visible in the institutional practice of the other EU institutions. Just as State parties of the ECHR seldom refer to the Convention in the text of their domestic legislation, the EU institutions could well continue their present practice of frequently referring to the Charter of Rights but seldom to the Convention. However, one could imagine the legal services of the EU institutions (particularly that of the Commission) paying increased attention to the ECHR compatibility when adopting acts of EU law, so as to avoid challenges against EU measures before the Strasbourg Court.
Footnotes
Declaration of conflicting interests
The author declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author received no financial support for the research, authorship, and/or publication of this article.
