The Second Attempt at EU Accession to the ECHR: Opinion 2/13

The  EU’s  internal  protection  of  human  rights  is  inextricably  linked  with  the  European Convention on Human Rights(ECHR). Until the Treaty of Lisbon, which made the EU Charter on Fundamental Rights (Charter) formally binding, the EU depended on general principles of EU law,relying heavily on the ECHR for their content. Developing fundamental rights in the EU in that way was necessary to counter Member States challenges to the primacy and effective implementation of EU lawn and to preserve the EU’s legitimacy when it increasingly affected the rights of individuals.

Accession of the EU to the ECHR was to create external human rights accountability to further increase the EU’s legitimacyand to prevent conflicting obligations for Member States under EU law and the ECHR. A first attempt of the EU toaccede to the ECHRfailed in 1996 when the Court of Justice of the European Union (Court)held somewhat unconvincingly,that the EU (then EEC)lacked competence to do so. The Treaty of Lisbon in 2009 created an explicit competence and requirement to accede in Article6(2) TEU. Further provisions were laid out in Protocol No. 8 and a Declaration to Article6(2)3to accommodate procedurally the specific featuresof  the  EU  (Article1  of  Protocol  No.  8). With  regard  to  substantive  conditions, Protocol No. 8 repeats Article 6(2) TEU in that accession should not affect the competencesof the EU and its institutions. Protocol No. 8 adds two further conditions: accession should not alter the situation of the Member States in relation to the ECHR (Article2 of Protocol No. 8) and the exclusivity of jurisdiction of the Courtregarding the treaties must be preserved (Article344 TFEU, Article3 Protocol No. 8).

This is the author's self-archived chapter originally published in Graham Butler and Ramses A. Wessel

(eds), EU External Relations Law: The Cases in Context (Hart/Bloomsbury, 2022). https://www.bloomsbury.com/uk/eu-external-relations-law-9781509939695/

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