16 EU Accession to the European Convention
on Human Rights~
| (32123)
10817/10
—
| Council Decision authorising the Commission to negotiate the Accession Agreement of the European Union to the European Convention for the protection of Human Rights and Fundamental Freedoms (ECHR)
|
| Legal base | Article 6(2) TEU and Protocol (No 8); Article 218(8) TFEU, unanimity; consent
|
| Department | Ministry of Justice
|
| Basis of consideration | Minister's letters of 14 February, 27 March, 15 April, 9 May and 16 August 2013.
|
| Previous Committee Reports | HC 86-xxix (2012-13) chapter 4 (23 January 2013), HC 428-xiv (2010-12) chapter 6 (26 January 2011).
|
| Discussion in Council | Not applicable
|
| Committee's assessment | Legally and politically important
|
| Committee's decision | Not cleared; further information awaited
|
Background
16.1 An outline of the history, scope and substance of the European
Convention for the protection of Human Rights and Fundamental
Freedoms (ECHR) was provided in our first Report[37]
on this document. For the purposes of this Report, we reiterate
that prior to the Council's approval of the draft Agreement (which
must be unanimous as required by Article 218(8) TFEU), it has
always been anticipated the Commission would apply to the Court
of Justice ("ECJ") for an Opinion, pursuant to Article
218(11) TFEU, on whether the "agreement envisaged is compatible
with the Treaties". The Article requires that where the "Opinion
is adverse, the Agreement envisaged may not enter into force unless
it is amended or the Treaties are revised". Additionally,
prior to Council approval of the Agreement, EU Internal Rules,
regulating at EU-level certain necessary internal arrangements
for EU and Member State participation in the Council of Europe,
need to be agreed, initially within the Council's Working Party
on Fundamental Rights, Citizen's Rights and Free Movement of Persons
(FREMP).
Ministers' letters since our last Report
16.2 Since our last Report on this document, the Secretary of
State has written to us on four occasions to keep us informed
of the progress in the accession process: letters of 14 February,
27 March, 15 April and 9 May 2013. We deferred reporting the substance
of these letters to the House in the expectation that, following
the provisional agreement of the Accession Agreement within the
"47+1" group (confirmed in the Secretary of State's
letter of 15 April), that a proposal for the EU Internal Rules
would follow shortly afterwards (since the agreement of Member
States secured on the former was contingent on agreement of the
latter) and that a Ministerial evidence session could be held
to encompass both. However, it is now apparent from the letter
of 16 August from the Minister of State for Policing and Criminal
Justice (Damian Green) that the next step in the process has become
the Commission's referral of the draft Accession Agreement to
the ECJ for an Opinion.
LETTER OF 14 FEBRUARY 2013
16.3 In this
letter the Secretary of State reported to us on the progress of
the accession negotiations, both internal and external to the
EU. He informed us of the latest meeting of the Council of Europe
working group (47+1) which took place from 21-23 January and said
that the next round of negotiations were scheduled for 2-5 April.
Internal EU negotiations were also to take place in the interval.
16.4 On the subject of concern to us, EU Member States
voting "en bloc" in the Committee of Ministers of the
Council of Europe, the Secretary of State responded by saying
that:
"Negotiations are ongoing on the issue of
voting in the Committee of Ministers. Although consensus has not
yet been reached, a compromise which seeks to address concerns
about the impact of any potential EU bloc vote is on the table.
All participants at Strasbourg have committed to returning to
the next round of negotiations with workable options for "final
resolutions" to this question. The detail will depend largely
on how the Council of Europe Secretariat elaborates its initial
proposals, which are expected "well in advance" of the
next round of negotiations, and on the outcome of Internal EU
discussions on the response to be presented at that round in April."
16.5 He also noted our intention to hold an evidence
session before the conclusion of negotiations and said that he
was happy to appear before us if that would assist.
Our response of 27 February 2013
16.6 We thanked the Secretary of State for his helpful
update and noted his willingness to assist the Committee by giving
evidence. We also asked him for a further update, after the April
session, on changes to the draft Accession Agreement, including
any new compromise proposals on "en bloc" voting. We
requested him, in due course, to give us ample notice of the timing
of the conclusion of those negotiations as well as of the emergence
of a proposal on the Internal Rules.
LETTERS OF 27 MARCH AND 15 APRIL 2013
16.7 The first letter, in which the Secretary of
State informed us that there might be provisional agreement of
the Accession Agreement at the 3-5 April meeting of the "47+1"
group and that the Government had been working to protect national
interests in negotiations on voting rights, was quickly superseded
by the second (particularly important because of the intervening
Easter recess). In this second letter, he confirmed that there
had indeed been provisional agreement on the Agreement but that
this was strictly "in principle" only and subject to
negotiations on the rest of the accession package, including EU
Internal Rules and the approval of the ECJ which he anticipated
would be sought before the summer recess.
16.8 On the question of voting rights in the Committee
of Ministers, the Secretary of State said that good progress had
been made and a compromise achieved which "carefully balances
the impact of a potential EU bloc vote" by:
- limiting the EU right to vote
to those decisions made under a power conferred by the ECHR itself
(where the EU has a legitimate say), including relating to the
formation of judges, supervising the execution of friendly settlements
and of judgments, requests to the European Court of Human Rights
for advisory Opinions and the adoption of Protocols to the ECHR;
and
- denying the EU a right to vote on broader Council
of Europe business (where Member States will want to represent
their own interests, something that the UK strongly argued for).
Our response of 17 April 2013
16.9 In our letter of 17 April, we requested to be
kept informed of further progress towards accession, in particular
the negotiations on the Internal Rules. We said we found the Secretary
of State's explanation of the nature of the compromise achieved
on proposals governing EU voting rights in the Committee of Ministers
helpful but that it would be of interest to us to know, as negotiations
on the Internal Rules progressed, if they would also address the
issue of "en bloc" voting. We also asked for clarification
of the expected scrutiny process for the Internal Rules so that
we could plan the timing of a Ministerial evidence session on
both those and the provisional Accession Agreement.
LETTER OF 9 MAY 2013
16.10 The Secretary of State, in response, confirmed
that the Government was still waiting for a Commission proposal
on the Internal Rules, saying that once received, the proposal
would be deposited in Parliament and subject to Committee scrutiny
procedures in the normal way. He then discussed the broader "accession
package", to which, he said, a number of additional Parliamentary
scrutiny processes would apply. He gave, as an example, the need
for Parliamentary approval for the Accession Agreement, pursuant
to section 10(4) of the EU Act. He added that the Internal Rules
were also "likely" to need EU Act approval, but that
"the precise process will depend on the legal base, which
will not be clear until the Commission presents its proposal."
Our response of 21 May 2013
16.11 We thanked the Secretary of State for his
clarification of the scrutiny process for the EU Internal Rules.
We said that, as we were now minded to wait until after the publication
of the Commission's proposal on the Rules for him to give evidence
before us on both that proposal and the provisional text of the
Accession Agreement, we would appreciate as much notice as possible
of when the Commission would be proposing the Rules.
LETTER OF 16 AUGUST 2013
16.12 The Minister of State for Policing and Criminal
Justice (Damian Green) now writes to inform us that the Commission
has referred the "provisionally agreed Accession Agreement"
to the ECJ "for an Opinion on the Agreement's compatibility
with the EU Treaties" pursuant to Article 218(11) TFEU and
he encloses with his letter a copy of the "Request for an
Opinion",[38] together
with a copy of the negotiation report[39]
(itself containing the text of the draft Accession Agreement and
explanatory report).
16.13 He explains that Member States are able to
intervene in the "process to offer their comments on the
points raised, or to put before the Court additional points on
the Accession Agreement's compatibility with the EU Treaties."
The Minister says that the UK intends to intervene and would welcome
any comments we wish to make in advance of the deadline for submissions
(15 October).
Our assessment of the Commission's Request
16.14 We are mindful of the timing constraints arising
from the deadline for submission of the UK's intervention and
the party conference recess. So, in reviewing the Commission's
Request for an Opinion, we have limited our comments to:
- areas of prior concern which
we have previously identified and
- those aspects of the Accession Agreement which
the Commission earmarks for inclusion in the EU Internal Rules
or which we consider should be the subject of the Internal Rules.
16.15 The main areas of prior concern are:
- the implications of the EU
and Member States caucusing and voting "en bloc" in
the Committee of Ministers of the Council of Europe;
- the possibility of the EU acceding to more protocols
to the ECHR than its individual Member States (or EU accession
undermining Member States' existing derogations from or reservations
to the ECHR);
- the process for attributing responsibility as
between the EU and Member States in the co-respondent procedure;
and
- the possible use of the ECHR control mechanisms
by the EU against EU Member States ( and to a lesser extent, vice
versa).
16.16 Before addressing the Request itself, we set
out below the key features of the provisional Accession Agreement:
- a limited accession which will
include the ECHR and only the Protocols signed up to by every
EU Member State i.e. the First Protocol (including protection
of possessions and right to education) and Sixth Protocol (abolition
of the death penalty), though there will be scope for the EU to
accede to more Protocols post accession;
- the election of an EU judge to the ECtHR (European
Court of Human Rights), eligible to sit on all cases not just
limited to those relating to the EU;
- the provision of a mechanism to enable the EU
or a Member State to join proceedings in a co-respondent capacity
before the ECtHR, particularly where a Member State is being held
to account for acting in pursuance of EU law;
- the provision of an accelerated procedure to
enable the ECJ to assess the compatibility of EU law with the
ECHR where the EU is a co-respondent to a case, though this assessment
will not be binding on the ECtHR (termed "prior involvement
of the ECJ");
- the creation of special voting procedures to
accommodate the EU's participation in the work of the Committee
of Ministers in the Council of Europe, to facilitate coordination
of EU and Member State action in certain respects but also to
protect the other 20 contracting parties from being automatically
overruled by a bloc vote by the "EU 28"; and
- the entry into force of the Agreement three months
after ratification by all Council of Europe contracting parties
and by the EU.
OVERVIEW OF THE "REQUEST FOR AN OPINION"
16.17 The Commission's Request is divided into two
main sections: an Introduction and an Assessment.
Introduction
16.18 In the Introduction the Commission:
- gives an overview of the scope,
content and the "control" and decision-making mechanisms
of the ECHR (the ECtHR and the Committee of Ministers);
- explains the nature of the legal relationship
between the EU and the ECHR (as clarified by Article 6(3)TEU[40]
and Opinion 2/94[41]
of the ECJ);
- sets out the history of the accession process;
- provides an overview of the draft Accession Agreement
(highlighting those key provisions which are needed to change
the ECHR system to allow for EU accession); and
- states the "desirability" of obtaining
the court's Opinion "in the interests of legal certainty"
(despite its belief that the draft Accession Agreement satisfies
all requirements of EU primary law).
16.19 The overview of the draft Accession Agreement
itself is divided into four parts, dealing with the nature of
amendments to the ECHR which will be needed to:
- subject the EU to the substantive
obligations imposed by the ECHR, including its "control machinery"
referred to above;
- reflect the fact that the EU is not a state but
a regional organisation;
- allow for the EU not being a member of the Council
of Europe; and
- preserve the effectiveness of the "control
machinery" with respect to the EU.
Assessment: Admissibility
16.20 The Assessment is divided into two further
sections: "Admissibility" and "Substance".
In the "Admissibility" section, the Commission draws
on the requirements for admissibility set out in the ECJ's Opinion
2/94[42] and says that:
- sufficient information has
been provided to the Court to enable it to opine (comprising the
draft Accession Agreement and the "accompanying instruments"[43]
that have been agreed by negotiators); and
- the draft Agreement is "envisaged"
within the meaning of Article 218(11) TFEU as clarified by Opinion
1/94[44] (because the
EU has not yet finally expressed its consent to the proposed Accession
Agreement and there is no need for the EU's Internal Rules to
have been finalised before the ECJ's Opinion is sought).
16.21 This last assertion requires further explanation,
particularly as it was not expected that the Commission would
seek the ECJ's Opinion prior to the agreement and publication
of the EU Internal Rules. The Commission concedes that the "actual
participation by the Union in the judicial control machinery established
by the Convention will require not just the entry into force of
the Accession Agreement, but also the enactment of a number of
provisions internal to the Union ('the internal provisions')"
for dealing with issues such as the election of an EU judge to
the ECtHR and the prior involvement of the ECJ. However, it argues
that:
"in assessing whether an Agreement that
has not yet been concluded by the Union is 'envisaged' there is
no reason to consider the stage reached in enacting whatever provisions
may be necessary at Union level in order to regulate questions
relating to the legal position of the Union as a future party
to the Agreement".[45]
16.22 The Commission supports this conclusion with
the following reasoning:
- the Internal Rules will just
be subsidiary to the Accession Agreement which they will be "grafted
onto" and "seek to implement at Union level";[46]
- it is therefore appropriate
that before advancing the process of agreeing the Rules, the EU
institutions have legal certainty that the content of the draft
Agreement itself is compatible with the Treaties; and
- in any event, it is always possible that the
ECJ could arrive at a finding of compatibility with the Treaties
which is conditional upon Internal Rules being enacted with "a
specified content".
16.23 We deal further with the Commission's approach
to the Internal Rules in the Request and the seeking of an Opinion
prior to the publication of the Rules in both our analysis of
sections of the Request and in our overall Conclusion. At this
point we simply say that we regard this as a significant area
of concern, given the ECJ's finding in Opinion 2/94 that it must
be given sufficient information on such:
"arrangements by which the Community envisages
submitting to the present and future judicial control machinery
established by the Convention."[47]
Assessment: Substance
16.24 The "Substance" section first comprises
an overview of the EU "Legal Framework" for accession
which principally resides in Article 6(2) TEU and the protocol
relating to it, Protocol No 8. The Commission states that Article
6(2) imposes a legal obligation on the EU institutions to seek
to conclude an Accession Agreement, which is mirrored by the obligation
of the Member States to facilitate this by virtue of the principle
of sincere co-operation (Article 4(3) TEU). The Commission also
rehearses the conditions set out in Articles 1, 2 and 3 of the
Protocol regarding the content of the Accession Agreement in addition
to requirements set out in ECJ Opinions 1/91[48]
and 1/00[49] regarding
the need for respect for the autonomy of the EU legal order. The
Commission then structures the rest of its assessment of the compatibility
of the draft Accession Agreement with the Treaties with reference
to these conditions as headings.
16.25 Since the 2011 evidence session, we have frequently
pursued the issue of how co-ordinated voting has progressed during
negotiations[50] and,
separately whether the issue would also be covered by Internal
Rules.[51] We note the
Commission is silent as to whether the process by which a co-ordinated
position is to be reached at EU level will be the subject of its
Internal Rules; an unwelcome silence given the expectation of
the former Secretary of State and ourselves that they should be.
CONCLUSION
16.26 Several of our prior concerns (for example,
the question of arrangements for co-ordinated voting and inter-party
proceedings as regards the possibility of the EU bringing an action
against a Member State in Strasbourg) are either only partially
addressed by the draft Accession Agreement or not at all, largely
because they require some prior agreement between the EU and Member
States at EU level as to how those forms of participation in the
ECHR mechanisms are to be arranged and organised. They should
therefore be the subject of Internal Rules and yet, throughout
the entire Request, the Commission only makes very general mention
of the need for Internal Rules in relation to the issue of the
candidature for the office of EU judge at the ECtHR,[52]
the procedure for the prior involvement of the ECJ[53]
and the co-respondent mechanism.[54]
16.27 The importance of such Internal Rules is
highlighted by the provisional nature of the Accession Agreement;
its adoption being contingent on satisfactory agreement of the
EU Internal Rules, as "part of a series of internal political
and procedural steps required before the final adoption of the
instruments", in the words of the EU Representative recalled
in the final "47+1" negotiation report.[55]
16.28 Given that the Member States regard the
draft Accession Agreement as conditional upon the content of the
Rules, we consider that the Commission has been somewhat precipitate
and premature in seeking the Opinion of the ECJ on the draft Agreement
only. Such is the degree of conditionality placed upon the draft
Agreement, that in the absence of published draft Internal Rules
on which Member States have at least been consulted, we do not
agree with the Commission's conclusions on Admissibility. We do
not think sufficient information has been provided to the Court
in compliance with Opinion 2/94[56]
or that the Agreement is "envisaged" within the meaning
of Article 218(11) for being too inchoate and uncertain.
16.29 The inter-relationship between the draft
Agreement and Internal Rules is so crucial that, depending on
what agreement is eventually reached on the Internal Rules by
Member States, the draft Agreement may need to be re-opened and
re-negotiated in the Council of Europe. To be "envisaged",
such that all that remains in the process is "consent",
implies a level of completion, finality and certainty of the draft
Agreement which does not exist in the present case.
16.30 To ask the ECJ to speculate on the content
of Internal Rules, in particular, to specify conditions for the
draft Rules as the Commission suggests, might be argued to be
an abuse of the balance of institutional powers. The ECJ is a
judicial body. Asking it to perform a quasi-legislative function
(or even a pre-legislative, policy-making executive function)
in relation to the content of prospective EU legislation as opposed
to asking it to perform a judicial "review" is, in our
view, incompatible with Articles 13(2),[57]
16(1),[58] 17(2)[59]
and 19 TEU.[60]
It also risks usurping the legislative process.
16.31 In addition, we consider that the Commission
has not provided the level of information required by Opinion
2/94[61] as it
fails to identify all areas where there is a need for an internal
rule — the prime example being the question of how common,
coordinated positions are to be achieved between the EU and Member
States concerning the remedial action and voting stance to be
taken in relation to an adverse judgment in co-respondent proceedings.
Those areas it does identify, it addresses on far too general
a level.
16.32 Finally, whilst we are disappointed that
the draft Accession Agreement affords, in principle, the option
for the EU to accede to more ECHR protocols than the Member States,
we are reassured by the safeguard of the need for unanimous Council
approval of such a step.
16.33 We thank the Minister for updating us on
these recent developments.
16.34 We support the UK's decision to intervene
in the Commission's Request for an Opinion of the ECJ. We are
grateful to the Minister for the opportunity to provide comments
on the Commission's Request in advance of the UK's submission.
Our comments are set out above. We ask the Minister in due course
to say to what extent he agrees with our concerns.
16.35 We also request the Minister to:
- provide an estimate of when
the ECJ may deliver its Opinion;
- clarify whether discussions on the Internal
Rules in FREMP are continuing regardless, and if so, to keep us
informed of any developments; and
- provide us, in due course, with a summary
of the points raised in the Government's intervention.
16.36 In the light of these significant developments,
we invite the Secretary of State for Justice to appear in person
before us as soon as possible after the Conference Recess.
16.37 In the meantime, the original document deposited
(the draft Council Decision 32123; 10817/10) remains under scrutiny.
37 See headnote: HC 428-xiv (2010-12) chapter 6 (26
January 2011). Back
38
Dated as being accepted by the ECJ on 1 August 2013. Back
39
http://www.coe.int/t/dghl/standardsetting/hrpolicy/Accession/Meeting_reports/47_1(2013)008rev2_EN.pdf. Back
40
Article 6(3) TEU: "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". This Article consolidated existing case
law of the ECJ including Case 29/69 Stauder [1969] ECR
419, Case 11/70 Internationale Handelsgesellschaft [1970]
ECR 1125, and Case 4/73 Nold v Commission [1974] ECR 491).
Case C-260/89 ERT [1991] ECR I-2925, para 41 Back
41
[1996] ECR I-1759: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:61994CV0002:EN:PDF.
The ECJ held, post the Maastricht Treaty
but prior to Amsterdam, that EU accession to the ECHR would entail
substantial change in the then Community system for the protection
of human rights in that it would entail the entry of the Community
into a distinct international institutional system as well as
integration of all the provisions of the Convention into the Community
legal order. The Court said that such a modification of the system
for the protection of human rights in the Community, with equally
fundamental institutional implications for the Community and for
the Member States, would be of constitutional significance. It
would therefore be such as to go beyond the scope of Article 235
of the EC Treaty, and consequently could be brought about only
by way of Treaty amendment. The Court accordingly held that as
Community law then stood the Community had no competence to accede
to the Convention. Back
42
See note 5. Back
43
These instruments are not described in the Commission's Request
but are the instruments which appear as Appendices to the Final
Report to the CDDH of 10 June 2013(47+10(2013) 008: http://www.coe.int/t/dghl/standardsetting/hrpolicy/Accession/Meeting_reports/47_1(2013)008rev2_EN.pdf.
These are Appendix II (Draft declaration by the European Union
to be made at the time of signature of the Accession Agreement),
Appendix III (Draft rule to be added to the Rules of the Committee
of Ministers for the supervision of the execution of judgments
and of the terms of friendly settlements in cases to which the
European Union is a party), Appendix IV (Draft model of memorandum
of understanding between the European Union and X [State which
is not a member of the European Union] and Appendix V (draft explanatory
report to the draft Accession Agreement: http://www.coe.int/t/dghl/standardsetting/hrpolicy/Accession/Meeting_reports/47_1(2013)008rev2_EN.pdf. Back
44
[1994] ECR I-5267: see http://eur-lex.europa.eu/smartapi/cgi/sga_doc?smartapi!celexplus!prod!CELEXnumdoc&numdoc=61994V0001&lg=en.
The ECJ stated that "The Court
may be called upon to state its Opinion pursuant to Article 228(6)
of the Treaty at any time before the Community's consent to be
bound by the Agreement is finally expressed. Unless and until
that consent is given, the Agreement remains an envisaged Agreement.
Consequently, there is nothing to render this request inadmissible". Back
45
P.23 of the Request, para 60. Back
46
P.23 of the Request, para 61. Back
47
See note 5, para 20. Back
48
[1991] ECR I-6079. Back
49
[2002] ECR I-3493. Back
50
See headnote: our letter of 21 November 2012 as referred to in
our second Report: HC 86-xxix (2012-13) chapter 4 (23 January
2013) to which the current Secretary of State for Justice responded
in his letter of 17 December 2012. Back
51
See also our letter of 17 April 2013 at para 17 of this Report
chapter. Back
52
See para 177, p.59 of the Request. Back
53
See para 150, p.51 of the Request. Back
54
See paras 108-110, p.36 of the Request. Back
55
See note 3. Back
56
See note 5. Back
57
Article 13(2) TEU states: "Each institution shall act within
the limits of the powers conferred on it in the Treaties, and
in conformity with the procedures, conditions and objectives set
out in them. The institutions shall practice mutual sincere cooperation". Back
58
Article 16(1) TEU states: "The Council shall, jointly with
the European Parliament, exercise legislative and budgetary functions.
It shall carry out policy-making and coordinating functions as
laid down in the Treaties". Back
59
Article 17(2) states: "Union legislative acts may only be
adopted on the basis of a Commission proposal, except where the
Treaties provide otherwise". Back
60
Article 19 prescribes the judicial functions of the ECJ. Back
61
See note 5. Back
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