‘[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.’
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.