THE EUROPEAN CONVENTION OF HUMAN RIGHTS AND THE EUROPEAN UNION- SITUATIONS, DILEMMAS, CHALLENGES…

Abstract

Although there are numerous dilemmas, analyses and considerations concerning the EU's accession to the ECHR, the most general position is that it represents a huge step ahead in the development of the human rights within the EU, and issue to which the EU has been paying significant importance since the early seventies of the last century. Namely, the first general reference to the ECtHR can be found in the Nold case1 of 1973, as well as in the Rutili decision2, further confirmed in Johnston3 and Heylens4. The emergence and development of human rights protection in the Union must be attributed to a large extent to the ECJ’s “activist” case law, and to its gradual judicial dialogue with the ECtHR (Harpaz, 2009, 32, 126). It was only in the late eighties that EU Member States started considering the insertion of human rights provision in EU primary law (Rodean, 2012). The Single European Act (1986) contained a reference to human rights (and to the ECHR), at least in its preamble. The Amsterdam Treaty (1997) referred to respect for human rights as of the principles on which the Union is founded, and in 2000, the EU adopted its own comprehensive catalogue of human rights. Today, this practically unanimously confirmed need for EU's joining to the ECHR finds its legal grounds in the Article 59, paragraph 2 of the European Convention of Human Rights, which says that: "The EU can join this Convention", and in context of the Protocol 14 of the ECHR, put into force on 1 June 2010. Although the fundamental rights, as a general principle of the European Community Law, i.e. the EU Law, are recognised and enjoy protection by the European Court of Justice of the EU, already in 1960, through the known cases of Stauder and International Handelsgesellschaft5, it is still considered that it was with the Lisbon Treaty that the EU provided maximum protection of these rights. Namely, according to this Treaty, and in accordance with the EU Charter for Fundamental Rights, the human rights are more deeply and more profoundly determined as EU's core and essential values. The new establishment of the protection of the fundamental rights in Europe opened important issues and dilemmas about the relations between the EU legal order, the EU Charter and the European Court of Justice on one hand, and the ECHR, and the European Court of Human Rights case law, on the other. This paper will analyse the current issues related with the recent negative opinion issued by the ECJ concerning the draft-agreement for the EU accession to the ECHR despite the vast consensus for its acceptance by the Member States and by the European institutions that were present at the hearing on 5-6 May 2014. The debate on the role of the ECHR in EU law, and on the possible accession of the EU to the Convention, has actually intensified throughout the EU integration process.