Wednesday 14 October 2020

Guest Post: Negotiations on EU Accession to the ECHR Restart after Five Years: Between Unlikely and Doable

By Dr. Fisnik Korenica, assistant professor of Constitutional Law and Human Rights at University of Prishtina and Co-Founder of the Group for Legal and Political Studies. He is author of the monograph The EU’s Accession to the ECHR, Springer 2015. 
The accession of the European Union (EU) to the European Convention on Human Rights (ECHR) has been a heated debate for a long time. Academic and political motives have led several authors to write about this development from a number of perspectives. A significant amount of literature has attracted the interest of lawyers on numerous characteristics of the mechanics of accession. 
A Council of Europe working group (WG) has just recently restarted the negotiation process on a new draft agreement on EU’s accession to the ECHR. One must recall that although the project of accession has been discussed for several decades, a final draft accession agreement was only finalized in April 2013. It was envisaged as a shared agreement that tackled the concerns raised by EU member states around the withdrawal of sovereign competencies. The design of the agreement met with various criticisms, the vast majority of them relating to concerns over the external and internal autonomy of EU law. A co-respondent mechanism, namely a tool for joint attribution of responsibility between the EU and its member states, was designed to bridge this gap whenever a violation of the ECHR would originate in an action or omission of the national authorities authorized or mandated by EU law (but not only). The draft agreement also envisaged inter-party complaints and did not bar the EU from acceding to future protocols of the ECHR, such as Protocol 16. 
In December 2014, the story of the draft accession agreement was brought to a sudden halt by Opinion 2/13 of the Court of Justice of the EU (CJEU). The CJEU found several aspects of the draft agreement problematic from the perspective of EU law. The CJEU concluded that certain aspects such as the possibility of the EU to accede to Protocol 16, the blurred relationship between Art. 53 Charter of Fundamental Rights and Art. 53 ECHR, the equal treatment of the EU as a respondent hand in hand with member states, the controversial relationship between Art. 344 TFEU and the inter-party mechanism foreseen in the draft agreement, the prior involvement mechanism, the co-respondent mechanism, etc., were altogether incompatible with EU treaties. Considering that such problematic traits were too heavy to be addressed by the negotiating teams, no solution was seemed in sight. And indeed the process had been stalled until very recently.
The Steering Committee for Human Rights (CDDH) ad hoc negotiation group restarted its negotiations in September 2020, meeting for the first time since a final draft agreement was concluded in 2013. It is convened with the understanding that a new negotiation process that addresses the concerns of Opinion 2/13 should take place. One can speculate that the motive after the call from the European Commission (EC) to restart negotiation of a new draft agreement at this point in time is impacted by the credibility losses which the EU faced after Brexit. The EC seemingly sees the accession project as a gain for EU’s strategic action in international fora. The Secretary General of the Council of Europe, Ms. Pejčinović Burić, and the EC's Vice President for Values and Transparency, Ms. Jourová, indicated on this occasion that:

‘[ECHR] represents everything that the Council of Europe and the European Union stand for. In these difficult times, the resumption of these crucial negotiations sends a strong signal about the commitment of our two organisations, and our member states, to the fundamental values that we cherish. We very much hope that the negotiations can be brought to a speedy and successful conclusion for the benefit of Europe as a whole.’

The decision to reconvene followed the request by the EC and the Committee of Ministers of the Council of Europe to set new terms of reference for the new negotiation process in 2020. The first meeting of the WG was held between 29 September and 2 October 2020, where numerous technical issues were discussed. A major point of consideration was the ‘Paper to structure the discussion at the 6th negotiation meeting’, which set a framework for the new negotiating process. The document was not released to the public, yet transcripts of the meeting reveal the main points it raised: namely, the four categories of issues noted in the paragraph below. The Paper, however, does not offer anything substantial in regards to solutions that would resolve the existing controversy surrounding the reasonableness of the accession project and the far-reaching requirements following from Opinion 2/13. It merely underlines what Opinion 2/13 had concluded, indicating aspects for which a new negotiation and/or design would have to be engineered.

Four additional major issues were discussed in the first meeting of the WG. First, general issues of EU-specific mechanisms for the procedure before the European Court of Human Rights (ECtHR); second, the inter-party mechanism and the possibility for domestic judges to ask for an advisory opinion under Protocol 16 ECHR; third, the principle of mutual trust between EU member states in the view of Art. 53 Charter of Fundamental Rights of the EU and Art. 53 ECHR; and, fourth, the jurisdictional immunity of the area of Common Foreign and Security Policy in procedures before the ECtHR. The European Commission reiterated that it does not require a privileged status for the EU in proceedings before the ECtHR. However, it maintained that some accents would have to be enhanced in the draft agreement for it to comply with Opinion 2/13. It further ‘recalled its determination to accede to the ECHR. It recalled that accession did not require to negotiate a new Accession Agreement, but rather to make some specific amendments to the already existing agreement whilst preserving its underlying balance.’ There is no specific information on the elements that would manifest these new requirements. One can assume that baseline documents will not be provided unless there is a new final draft agreement approved by the WG.

Commenting the future of this endeavour, Mr. Giakoumopoulos, the Director General of Human Rights and Rule of Law at the Council of Europe, stated that:

‘[a] revised Accession Agreement will naturally have to be regarded as a compromise package which eventually must be acceptable to all negotiation partners. Indeed, this is a matter of great political importance for today’s Europe. A strong political support in all European capitals will be, therefore, the key to deliver.’

A follow-up meeting of the WG is set for 24-27 November 2020, and there is no draft agenda available as of now.

One can observe that the first meeting of the WG was followed with a positive attitude towards the utilitarian necessity for a new draft agreement. Parties were generally open for a new negotiation process and maintained the need for further consensus to make the project of accession possible. However, little to no discussion that substantively engaged with the core questions of Opinion 2/13 and their plausibility in the light of a new draft agreement took place. It is difficult to estimate whether a proper new negotiation process will succeed. Chances are really slim that the far-reaching requirements of Opinion 2/13 would ever be consented by the 47+1 members of the WG. It is even more unlikely that, even if there is a consensus among negotiators, a draft agreement reflecting that momentum would ever have the support of all national legislatures in the ratification process. However, the November meeting of the WG will inform us more on the substance and will shed more light on the likelihood for success of this restarted negotiating process.