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The EU’s Accession to the ECHR: The Courts’ Relationship Prior to Accession


Written by Viktoria Tsvetanova
(LL.B graduate and DPLP student)

With the coming into force of the Lisbon Treaty in 2009, several amendments were introduced to the structure of the European Union (EU). Other than disposing of the ‘pillar structure’ previously in place, the Lisbon Treaty also makes provisions for the EU’s accession to the European Convention on Human Rights[1] (ECHR), an international Treaty established by the Council of Europe (CoE) through which Signatory States can be held accountable for human rights violations. Accession will place the EU on equal footing with its Member States in relation to the ECHR with the aim of increasing the EU’s credibility by allowing acts of EU institutions to be subjected to the scrutiny of the European Court of Human Rights[2] (ECtHR). Therefore, in cases concerning an alleged fundamental rights violation, the Court of Justice of the European Union (CJEU) will no longer be the final adjudicator of the legality of EU action. Since both the CJEU and the ECtHR claim to be human rights protectors by judging cases concerning fundamental rights, accession appears to be necessary in order to ensure the uniformity of judgements. However, if having two systems for the protection of fundamental rights is so dangerous to the principle of legal certainty, one wonders how Member States have coped with their dual obligations so far. In fact, the legal order pre-Lisbon was very functional. It placed the Courts in a cooperative relationship, ensuring the uniform protection of human rights after all. In this paper, I seek to explore this cooperative relationship and deduce why, despite it, accession is an essential step.


The Court of Justice of the European Union

When the EU[3] was formed in 1957, its goals were purely economic. Accordingly, having provisions for the protection of human rights in the original EEC Treaty was unnecessary[4]. However, with the widening of the EU’s aims, protection of human rights was a necessary step if it genuinely wanted to be a democratic system. Moreover, it was the CJEU that discovered this principle of human rights protection in the EU. In 1969, when provisions of community legislation were to be interpreted, the CJEU observed that “conceptions of value in the national constitutional law, in particular, national basic rights, must be observed as unwritten components of Community law” [5]. Thus, the Court deduced that fundamental rights were part of the general principles of EU law.

Having established the need to develop a system for the protection of fundamental rights in Europe, the EU chose not to develop its own rules yet[6] but to turn to the ECHR instead. This marked the beginning of a relationship of comity between the two Courts. In the 1990s, the CJEU went further than merely taking the ECHR’s principles into consideration and used the instrument as decisive guidance when ruling upon fundamental rights issues in EU law[7]. The CJEU’s commitment to the ECHR, despite not being based on a legal obligation, was once again made evident when the Luxembourg Court started paying increasingly close attention to the ECtHR’s jurisprudence; referring to it for the first time in P v S & CCC[8]. Thus, it is unsurprising that the CJEU’s interpretation of human rights will usually be analogous to the Strasbourg Court’s construal of the ECHR.

In 2000, the Charter of Fundamental Rights of the EU was enacted as a non-binding instrument[9] which served as a guide to the minimum human rights protection an EU Member State should afford its citizens. Since many of its Articles correspond to Articles of the ECHR, the CJEU continued to follow the ECtHR’s interpretation of those rights in its judgements. This continued respect for ECtHR interpretation is most noticeable[10] in its pursuit to guarantee a fair trial[11], respect for private and family life[12] and freedom of expression[13]. As such, the CJEU has demonstrated an understanding that the ECtHR is a specialised court.


The Courteous European Court of Human Rights

Despite the lack of a legal link between the CJEU and the ECtHR, the two Courts have come to a silent compromise in order to ensure a harmonious development of their case law. As explained above, the Luxembourg Court has been willing to employ the ECHR as a key source of law when ruling upon fundamental rights. On its part, the Strasbourg Court had made clear its willingness to establish a harmonious jurisprudence by referring to the CJEU’s case law[14].

Since all EU Member States are also parties to the Convention, they must always comply with the ECHR, even when implementing EU law. Thus, the ECtHR has been willing to review acts of EU Member States, despite the latter being directed by EU law[15]. This is logical since absolving Contracting Parties of their ECHR responsibilities by virtue of their transfer of competences to the EU would have been improper. However, on further examination, the ECtHR seems to nevertheless dismiss those cases on other grounds such as lack of victim status or non-applicability of the substantive rights claimed[16]. More importantly, the ECtHR’s inclination to maintain inter-court comity is seen through its abstinence from rendering judgements which may impede on the CJEU’s exclusive jurisdiction over EU law, in an attempt to avoid jurisdictional conflict. This approach was first seen in the landmark case of Bosphorus v Ireland[17]. In Bosphorus, the ECtHR held that when a Contracting State was acting in pursuit of an obligation deriving from its membership to an international organisation, its action was justified provided that the organisation protected human rights in a way “at least equivalent to” the protection afforded by the Convention[18]. If such an equivalent protection was afforded, then the state would be presumed to have complied with the ECHR as long as it had had no discretion in implementing the law. This became known as the ‘Bosphorus presumption’; rebuttable on a case-by-case basis only if the Court deems the protection to be “manifestly deficient”[19]. The Strasbourg Court held that the EU did provide the ‘equivalent’ protection necessary[20] and that there was no ‘manifest deficiency’[21].

The ‘Bosphorus presumption’[22] represents the most important contribution of the ECtHR towards the maintenance of legal certainty and harmony with Luxembourg jurisprudence by taking a default position that the EU’s protection of human rights is ‘equivalent’ to that of the ECHR. Accordingly, the ECtHR would abstain from ruling in cases where Member States did no more than apply their legal obligations. The ‘equivalent protection’ test suggests that attention is paid to the effectiveness of the judicial procedures within the EU, rather than the substance of the potential violation. Bearing in mind the CJEU’s commitment to the ECtHR’s jurisprudence, it is unsurprising that no ‘manifest deficiency’ has yet been found.


Evaluation of the Arrangement

It is evident that a complex but cooperative relationship has formed between the CJEU and the ECtHR. Both Courts have comprehended the importance of avoiding conflict between their bodies of case law and have developed an informal system based on cooperation to ensure legal certainty. On the one hand, the CJEU has been willing to employ the ECHR and ECtHR jurisprudence for decisive guidance when ruling upon fundamental rights issues in EU law. On the other, the ECtHR has been seeking to avoid judicial conflict by refraining from making judgements that may obstruct the exclusive jurisdiction of the CJEU over EU law. However, since this cooperative relationship has no legal basis, either Court can end it at any time[23].

The lack of legal duty to cooperate is precisely why I believe that the EU’s accession to the ECHR is necessary.  In the absence of a guaranteed relationship between the two Courts, they will remain fundamentally separate and will potentially issue conflicting judgements: a scenario which has previously occurred. In Hoechst, the CJEU decided that the right to private and domestic life does not apply to companies[24]. When ruling upon the same issue in Niemetz, the ECtHR decided that such a right does apply to companies[25].

Pavone[26] has argued that accession is unnecessary since the two Courts maintain a “highly functional system”[27]. Further, he contends that their institutional differences allow plaintiffs to ‘forum shop’ when choosing between them[28]. As concerns his latter argument, I am inclined to disagree. I do not see a possibility for a litigant to ‘forum shop’ since, assuming the case concerns an EU act implemented by a Member State, the ‘Bosphorum presumption’ would be applied in the ECtHR and the case would be dismissed. Thus, the litigant’s only possibility is to apply to the CJEU. Apropos Pavone’s former contention, I do agree that the Courts have developed a coherent human rights system. However, I do not believe that this system can last indefinitely. With an increasingly political Union, it needs official supervision in such a sensitive area as human rights. At the very least, accession will give legal basis for the Courts’ relationship, currently purely founded on collaboration, and will guarantee the future harmonious protection of human rights.

In summation, the CJEU’s parallel interpretation of fundamental rights with the ECtHR developed into a relationship of comity between the two European Courts. This has in turn ensured the uniformity of judgements by filling the gap existing due to a lack of legal association. However, this is no longer satisfactory. A merely cooperative relationship built on the use of one another’s legal instruments and jurisprudence does not absolve the EU from its lack of accountability when it comes to human rights protection. Furthermore, it does not guarantee the uniform protection of human rights in Europe. As such, I conclude that accession is a necessary future step.

[1] Article 6(2) Treaty on European Union.

[2] European Parliament Resolution, ‘Institutional Aspects of Accession by the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms (2009/2241(INI))’ Official Journal of the EU (2011/C 161 E/12) of 31 May 2011,, last accessed on 12/12/2013 at 13:00, 23.

[3] Then called the European Economic Community.

[4] Dogan,Y, ‘The Fundamental Right Jurisprudence of the European Court of Justice: Protection for Human Rights within the European Union Legal Order’(2009) 6 Ankara Law Review 53, 53.

[5] C-29/69 Stauder v City of Ulm [1969] ECR 419, at p.1.

[6] Charter of Fundamental Rights of the EU was drafted in 2000, when the EU had gained experience with fundamental rights case law.

[7] Case 260/89 Elliniki Radiophonia Tileorassi (ERT) v Dimotiki Etairia Pliroforissis [1991] ECR I-2925.

[8] C-13/94 [1996] ECR I-2143, at p.12.

[9] Until 2009 when the Lisbon Treaty gave it a binding status.

[10] Callewaert, J, ‘The European Convention on Human Rights and European Union Law: a long way to harmony’ (2009) 6 European Human Rights Law Review 768, 769.

[11] Case 7/98 Bamberski v Krombach [2000] ECR I-1935 (trial in absentia).

[12] Case 540/03 European Parliament v Council of the European Union [2006] ECR I-5769 (family reunification).

[13] Case 274/99P Connolly v European Commission [2001] ECR I-1611 (freedom of expression of European civil servants).

[14] Pellegrin v France, 8 Dec. 1999 (App. No. 28541/95) (2001) 31 EHRR 26.

[15] Melcher v Germany, 9 Feb. 1990 (App. No. 13258/87) 64 D&R 138.

[16] Craig, P. De Burca, G. EU Law: Text, Cases and Materials (Oxford University Press, 2011), 401.

[17] Bosphorus Hava Yollari Turizm ve Ticaret Anonim Sirketi v Ireland, 30 Jun. 2005 (App. No. 45036/98) (2006) 42 EHRR 1.

[18] Ibid., para 155.

[19] Ibid., para 156.

[20] Ibid., para 165.

[21] Ibid., para 166.

[22] Subsequently applied in Coopérative des Agriculteurs de Mayenne v France, 10 Oct. 2006 (dec.), (App. No. 16931/04) and Connolly v 15 Member States of the European Union, 9 Dec. 2008 (App. No. 73274/01).

[23] Krisch, N. ‘The open architecture of European human rights law’(2008) 71 Modern Law Review 183, 201.

[24] C-46/87 and 227/88 Hoechst AG v Commission [1989] ECR 2859 at p.17.

[25] Niemitz v Germany, 16 Dec. 1992 (App. No. 13710/88) (1993) 16 EHRR 97 at p.31.

[26] Pavone, T, ‘The Past and Future Relationship of the European Court of Justice and the European Court of Human Rights: A Functional Analysis’,, Accessed 12/12/2013 at 13:00.

[27] Ibid., 19.

[28] Ibid., 16-17.

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