The Court of Justice of the EU (CJEU) has today issued a legal opinion with far reaching consequences, possibly banning the EU from acceding to the European Convention on Human Rights (ECHR). The opinion is not yet online, but those interested can read the Court’s press release, which summarizes the findings.
This is not the first time the Court had to deal with this matter. Already in 1996 it was called to issue a legal opinion as to whether or not it was possible for the EU to accede to the Convention. At the time, the outcome was that there was no legal basis in the EU Treaties that would allow the EU to accede to the Convention.
In the meantime, the Lisbon Treaty has provided for such a basis that would explicitly authorize the EU to accede to the Convention, and the CJEU recognizes this. Nevertheless, it finds that despite this legal basis the intended adherence of the Union to the Convention would be incompatible with EU law. Most of all, the Court is concerned over whether its own role as the supreme judiciary instance to interpret EU law would be undermined by competing competences of the European Court of Human Rights (ECtHR). Given the ECtHR’s readiness to succumb to the temptations of judicial activism, this concern is likely to be shared by many citizens.
With today’s legal opinion, it is unlikely that the EU will accede to the Convention any time soon. The CJEU has effectively erected a number of hurdles that will be extremely difficult to overcome. In the battle of giants between the Luxembourg and the Strasbourg Courts, Luxembourg has asserted its own supremacy. But it remains to be seen how Strasbourg will answer to this challenge. There have already in the past been cases where applicants have challenged EU legislation before the Strasbourg Court. For example, in the case of Matthews v. the United Kingdom the ECtHR ruled that the exclusion of inhabitants of Gibraltar from participating in the elections of British Members of the European Parliament was a violation of the Human Rights Convention. Although formally addressed to the United Kingdom, the decision was in fact directed against a legal act of the European Union (cf. §§ 26ff. of the ECtHR judgment). There could be many more such cases, and the ECtHR could be tempted to use them in order to aggrandize its own position.
The battle is thus likely to continue…