Principles and practices of EU external representation - Asser Institute

Accession to the ECHR as the final step of mutual recognitionEU external representation in context: accession tothe ECHR as the final step towards mutualrecognitionChristina Eckes*1. IntroductionThe European Union (EU)’s accession to the European Convention on HumanRights (ECHR) is the most topical example of participation by the EU in aninternational legal system. Accession to the ECHR will have largely the sameeffects as membership in an international organisation. More significantly, theEU will become subject to legally binding judicial decisions of the EuropeanCourt of Human Rights (ECtHR) and it will participate in the statutory bodiesof the Council of Europe (Parliamentary Assembly; Committee of Ministers)when they act under the Convention. Both the EU judge in the ECtHR and theEU’s participation in the Council of Europe are a form of external representationof the EU.The EU’s accession to the ECHR has been subject of discussion since the1970s. 1 This discussion culminated in 1994 with the Court of Justice terminatingall accession attempts under the old Treaty framework. 2 The main reasonfor the Court of Justice giving a negative opinion was that the Court wanted topreserve the autonomy of the EU legal order and its own exclusive jurisdictionover EU law. The situation changed fundamentally on 1 December 2009 withthe entry into force of the Lisbon Treaty. Accession has now become possibleunder EU law. Indeed, it has even become an obligation. 3 The negotiation anddrafting of the draft accession agreement between July 2010 and June 2011is an example of coordinated representation of the EU. Choosing representativeson the basis of expertise rather than political affiliation allowed the Unionto act externally more unified than could have been expected in the light of theinternal political discrepancies.Yet, many questions remain open. In what way do the two legal regimeshave to be adapted to make the EU’s accession legally possible and workablein practice? In what way is the EU’s position – as it is set out in the draft accessionagreement – different from the other Contracting Parties? What arethe reasons for the EU’s primus inter pares position under the Convention and* The author would like to thank Margot de Vries for her research assistance.1 See e.g. European Commission, Memorandum on the accession of the European communitiesto the Convention for the protection of human rights and fundamental freedoms, COM (79)210 final, 2 May 1979, 4 April 1979, Bulletin of the European Communities, supp. 2/79.2 Opinion 2/94 ECHR Accession [1996] ECR I-1759.3 Art. 6(2) TEU ‘The Union shall accede…’ and Protocol 8. See also on the side of the ECHR:Art. 59(2) ECHR as amended by Protocol 14.103CLEER WORKING PAPERS 2012/5