Besselink, L.

English

The draft accession agreement has many objectionable features. Never has the citizens’ perspective been the EU concern during negotiations. Diplomatic secretiveness, an exceptional treatment of the European Court of Justice in honour of its claimed constitutional ‘prerogatives’ (the ‘prior involvement’ procedure), and the complications of a ‘co-respondent mechanism’, resulted naturally. And yet, accession would be a good thing

International Migration, Integration and Social Cohesion online publications

UvA-DARE is a service provided by the library of the University of Amsterdam (https://dare.uva.nl)UvA-DARE (Digital Academic Repository)Why, after all, it is a good thing for the EU to accede to the EuropeanConvention on Human RightsBesselink, L.Publication date2013Document VersionFinal published versionLink to publicationCitation for published version (APA):Besselink, L. (Author). (2013). Why, after all, it is a good thing for the EU to accede to theEuropean Convention on Human Rights. Web publication or website, BlogActiv.http://acelg.blogactiv.eu/2013/06/24/why-after-all-it-is-a-good-thing-for-the-eu-to-accede-to-the-european-convention-of-human-rights/General rightsIt is not permitted to download or to forward/distribute the text or part of it without the consent of the author(s)and/or copyright holder(s), other than for strictly personal, individual use, unless the work is under an opencontent license (like Creative Commons).Disclaimer/Complaints regulationsIf you believe that digital publication of certain material infringes any of your rights or (privacy) interests, pleaselet the Library know, stating your reasons. In case of a legitimate complaint, the Library will make the materialinaccessible and/or remove it from the website. Please Ask the Library: https://uba.uva.nl/en/contact, or a letterto: Library of the University of Amsterdam, Secretariat, Singel 425, 1012 WP Amsterdam, The Netherlands. Youwill be contacted as soon as possible.Download date:10 Mar 2023Why, after all, it is a good thing for the EU to accede to the European Convention on Human Rights | ACELGhttp://acelg.blogactiv.eu/2013/06/24/why-after-all-it-is-a-good-thing-for-the-eu-to-accede-to-the-european-convention-of-human-rights/[11-10-2016 11:12:45]About Newsletter Create your Blog Support LoginJune 24, 2013Why, after all, it is a good thing for the EU toaccede to the European Convention on HumanRightsThe draft accession agreement has many objectionable features. Never has the citizens’ perspectivebeen the EU concern during negotiations. Diplomatic secretiveness, an exceptional treatment of theEuropean Court of Justice in honour of its claimed constitutional ‘prerogatives’ (the ‘priorinvolvement’ procedure), and the complications of a ‘co-respondent mechanism’, resulted naturally.And yet, accession would be a good thing.By Leonard BesselinkThe new draft agreement on the EU accession to the European Convention on Human Rights (ECHR) wasnegotiated after a first draft was found unacceptable by EU member states. This was a dismal failure on thepart of the EU and its member states to live up to their commitment stipulated in Article 6 (2) of the EUTreaty[1] and for which the ECHR had created the legal opportunity in its Protocol No. 14, supported by allnon-EU members of the Council of Europe[2]. This time, it would seem, the EU is not going to spoil theparty. The member states are expected to agree with the draft agreement. The draft agreement will besubmitted to the Court of Justice of the EU (Art. 218(11) TFEU), which can be expected to give its fiat sincethe major conditions the Court had formulated prior to and during the negotiations for the compatibility of anaccession agreement with the Treaties (and in particular its own ‘prerogatives’ within the EU system), havebeen lived up to.Good, useful or neither?There are many reasons the accession negotiations could make one think the accession is neither usefulnor a good thing.The citizens’ perspective has been totally absent at all stages of the negotiations. The protection of theirrights has not figured in any of the working documents and reports on the negotiating rounds which haveseen the light. Predominant was the attitude of member state executives, which never like new obstacles inthe way of effective government. This attitude was copied by the EU institutions in their own way, includingthe Court of Justice which found that the unconditional power of fundamental rights scrutiny of the ECtHRover EU decision-making as the ECtHR exerts it over acts of member state authorities, would interfere withwhat it called its ‘prerogative’ within the EU legal order to decide on the validity of EU acts.[3]Domestic EU constitutional prerogativeWhy, after all, it is a good thing for the EU to accede to the European Convention on Human Rights | ACELGhttp://acelg.blogactiv.eu/2013/06/24/why-after-all-it-is-a-good-thing-for-the-eu-to-accede-to-the-european-convention-of-human-rights/[11-10-2016 11:12:45]Hence, an extremely complicated procedure for the sake of the ECJ’s prerogative is created which does notexist for any of the other domestic highest national highest courts in a similar position, named as ‘priorinvolvement’. Under this procedure a case that is being dealt with in Strasbourg is suspended in order for itto be dealt with first by the ECJ; and this can occur in cases in which it has not had the chance to adjudicateon the lawfulness of the relevant provision of EU law. The procedure would be aimed at the assessment ofthe legal basis of the provision of EU law at the basis of a complaint to be decided upon in Strasbourg.[4] Ittakes place in the undergrowth of the procedural jungle called the ‘co-respondent mechanism’, whichputatively has been created to protect the interests of the complainant in case he is successful in Strasbourgand is faced with the question who is liable when the complaint involved the EU and a particular MemberState.[5] Somehow the resultant procedure seems more aimed at securing the rights of involved MemberStates and the EU than those of the plaintiff – the wish of the Member State whether to be involved or notremains decisive for it to become a co-respondent. So the citizen who is put in the right by the ECtHR willstill have to see how he actually gets it if the co-responsible member state (or the co-responsible EU for thatmatter) had declined the ‘invitation’ to become co-respondent during the procedure (Art. 3 Draft AccessionAgreement).Accession as a toy in EU diplomacyAnother particularly infelicitous aspect of the process of accession was the failure on the part of the EU toobserve the openness and transparency pertinent to issues of constitutional rights of citizens, as it wasobserved during the first Convention, which drafted the Charter on Fundamental Rights, as well the secondConvention drafting the Constitutional Treaty. Instead the Council and Commission reverting to the fullsecrecy of high diplomacy, stating that what they called the ‘strategic objectives’ of accession could not berevealed to their counterparts, let alone the EU citizens – this notwithstanding the statement of someMember States that the negotiating mandate which to this day is secret, contains at least in part what ineffect is already contained in the Lisbon Treaty and its relevant annex, as well as unnegotiable unilateralchoices which are accepted without further ado by the other parties around the table since these determinethe object of what is negotiated. Openness did not come from the EU, but from the Council of Europe, whichpublished important working documents, agendas and the reports of meetings of the negotiating groups on aspecial website.Putative lack of added valueLastly, various commentators have already for some time been asserting that accession adds little to theprotection of citizens’ rights, since the ECHR rights are already protected in EU law, also against acts andomissions of the institutions.And yet the accession is a good thing…Those who say that the fact that ECHR rights are protected already and hence formal accession issuperfluous overlook two closely related points. Firstly, all the original states party to the ECHR werevociferously stating that the ECHR would change little to their national orders since the ECHR rights merelycodified what was already law: each of them claimed already to be protecting all the relevant rights.Secondly, this very position – however mistaken it turned out to be – did not take away the reason forbecoming a party to the ECHR. To the contrary, the protection of citizens’ rights and freedoms wasconsidered so important that states were willing to commit themselves internationally to their observance,followed by an equal commitment unconditionally to submit their compliance to that internationalcommitment to the supervision of an external, international judicial body. It is here, in the external anchoringof the EU to the values of protection fundamental rights and freedoms and submitting itself to theWhy, after all, it is a good thing for the EU to accede to the European Convention on Human Rights | ACELGhttp://acelg.blogactiv.eu/2013/06/24/why-after-all-it-is-a-good-thing-for-the-eu-to-accede-to-the-european-convention-of-human-rights/[11-10-2016 11:12:45]supervision of the ECtHR, that the very meaning and great importance of the EU accession is to be found.By acceding to the ECHR, the EU makes clear to the non-EU members of the Council of Europe that itcommits itself to the values enshrined in the ECHR as enforceable rights, under the external supervision ofthe ECtHR. This is the prime commitment. Some of this may seem to have been lost in the result of theaccession agreement, but not the main idea of an eventual external anchoring of the most fundamental ofconstitutional values.It is true that there are many blemishes in the process of the negotiation of the accession, of which wesummed up some important ones. We have to be aware, though, of the redeeming effect of history and ofpractice in the course of time. The German constitution was born under circumstances that many Germanconstitutional scholars found falling short of a true constitutive act of an authentic pouvoir constituant. Yet,the very constitutional practice under the Grundgesetz provided it retroactively with most of the legitimacy itwas initially feared to lack.So yes, accession to the ECHR is, after all, a good thing.Leonard Besselink is Professor of Constitutional Law at University of Amsterdam and a Senior Researcherat ACELG. His personal page can be accessed here.[1] Art. 6(2) TEU: ‘The Union shall accede to the European Convention for the Protection of Human Rightsand Fundamental Freedoms. Such accession shall not affect the Union’s competences as defined in theTreaties.’[2] Art. 59(2) ECHR: ‘2. The European Union may accede to this Convention.’[3] Discussion document of the Court of Justice of the European Union on certain aspects of the accessionof the European Union to the European Convention for the Protection of Human Rights and FundamentalFreedoms, section 8, p. 4.[4] Art. 3(6) Draft Accession Agreement:’ 6. In proceedings to which the European Union is a co-respondent,if the Court of Justice of the European Union has not yet assessed the compatibility with the Conventionrights at issue of the provision of European Union law as under paragraph 2 of this Article, sufficient timeshall be afforded for the Court of Justice of the European Union to make such an assessment, andthereafter for the parties to make observations to the Court. The European Union shall ensure that suchassessment is made quickly so that the proceedings before the Court are not unduly delayed. Theprovisions of this paragraph shall not affect the powers of the Court.’[5] The other sections of Art. 3 Draft Accession Agreement.Author : acelg Print UncategorizedComments0 1 0

Why, after all, it is a good thing for the EU to accede to the European Convention on Human Rights

https://pure.uva.nl/ws/files/2032902/177408_Why_after_all_it_is_a_good_thing_for_the_EU_to_accede_to_the_European_Conv.pdf

Why, after all, it is a good thing for the EU to accede to the European Convention on Human Rights

Abstract

Similar works

Full text

Available Versions

International Migration, Integration and Social Cohesion online publications