Draft EU-ECHR Accession Agreement finalized

As reported by news agencies just before the weekend, the European Union and the 47 member states of the Council of Europe has just agreed on draft legal instruments that enable the EU’s accession to the European Convention on Human Rights – after almost three years of negotiations. Antonie Buyse over at the ECHRblog has written a good and concise post on the topic already, which I recommend that anyone with an interest in the process should read.

While it was common knowledge that the negotiations were on the final stretch, at least I would not have expected that the final instruments would be ready before at least the next meeting of the delegations. That the delegations were able to solve all the outstanding issues this quickly must be seen as a positive sign, and suggests that the remaining obstacles will not render this agreement moot.

As Antonie Buyse mentioned in the above-mentioned post at ECHRblog, three main hurdles remain. First, the European Court of Justice (ECJ) will be asked to give its opinion on whether the draft instruments are compatible with EU law. If the ECJ finds that the draft Accession Agreement is incompatible with EU law, it has the power under TFEU article 218 (11) to forbid the EU institutions and the EU member states from entering into the agreement. However, most experts consider it unlikely that the ECJ will reject the Accession Agreement.

Secondly, a formal decision to sign the instruments and accede to the ECHR must be made by the Council of the European Union, after obtaining consent from the European Parliament, see TFEU article 218 (6)(a)(ii). Since the Council consists of 27 of the states that participated in the drafting of the Accession Agreement, there seems to be little risk of them blocking a decision. The European Parliament is also generally in favor of acceding to the ECHR. It is thus difficult to see that they would try and block the process.

Thirdly, the signature and ratification by all 47 member states of the Council of Europe + the EU itself is needed before the Accession Agreement enters into force. 27 of these 47 states are EU members, and will be bound to sign and ratify the agreement upon the above-mentioned decision in the EU Council. The EU will also be bound to sign according to the same decision. As for the 20 remaining CoE states it will be more interesting to see whether they will cooperate, whether they intend to block the process, or even block it. Russia did, for instance, refuse to ratify protocol 14 to the ECHR for years and years.

Only after going through all these loops, the Accession Agreement will enter into force, and from that day the EU will formally become the 48th party to the European Convention on Human Rights.

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