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Statewatch submission to House of Lords Select Committee on the European Union: The EU Charter of Rights

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Country/Region

02 October 2002

The Charter should become part of the treaties, subject to a number of important clarifications made to its horizontal provisions as regards competence, limitation clauses, and rights other than those based on the EC/EU Treaties and the European Convention on Human Rights (ECHR). The European Union should also be granted competence to accede to the ECHR.

Introduction

1. Statewatch welcomes the chance to comment on the Select Committee's inquiry into the future of the Charter of Rights of the EU and the issue of EC or EU accession to the European Convention on Human Rights (ECHR). These issues go to the heart of the effectiveness and credibility of the EU's proclaimed support for human rights.

2. The following discussion assesses the main issues raised by the Committee in its inquiry as well as the main issues identified for discussion by the EU Convention 'working group' on human rights issues (doc. Conv 116/02). It first examines general issues, then the Charter, accession to the ECHR and 'other' human rights issues in detail. While the focus is on the legal issues of the Charter, it should not be forgotten that support for human rights depends on a broader culture of respect for them among politicians and civil servants and an active civil society. Ideally such a broader culture will prevent some human rights breaches from developing in the first place. Moreover, the focus here on legal enforcement of human rights is not meant to suggest that non-legal remedies should not be developed (for example, see para. 59 on the role of the European Ombudsman).

Part I: General Issues

Current Status of the Charter

3. It is worthwhile at the outset to comment briefly on the precise current status of the Charter, particularly as some members of the Convention have apparently overstated the effect of the recent judgments by the Court of First Instance referring to the Charter (Cases T-54/99 Max Mobil v Commission, judgment of 30 Jan. 2002, and T-177/01 Jego-Quere et Cie SA v Commission, judgment of 3 May 2002, neither yet reported). In the first judgment, having found that two rights formed part of the general principles of EC law because they were found in the Member States' common constitutional traditions, the Court said that this position was 'confirmed' by the Charter (paras. 48 and 57, Max Mobil judgment). In the second case, the Court first found that a right was based on the common constitutional traditions and the ECHR, and then that this right was 'reaffirmed' by the Charter. It then considered the issue of standing to challenge Community acts 'in light of' the ECHR and the Charter (paras. 41, 42 and 47, Jego Quere judgment).

4. This approach clearly treats the Charter as an ancillary source of the general principles of Community law, not a primary source. The Court did not state expressly that the Charter was a source of the general principles of EC law, even alongside the established sources of general principles. Rather it first examined whether a general principle existed, based on the established sources, then used the Charter only to confirm or reaffirm the existence of that principle. So the Charter is not equal as a source of general principles of EC law. On the other hand, in Jego-Quere it was assumed that the EC Treaty should be interpreted in light of the Charter. The working group appears to believe that the Court treated the Charter as an equal and independent source of general principles, and also overlooks the role of the Charter in 'reaffirming' ECHR rights as well as national constitutional traditions (see para 7 in CONV 203/02, summary of the working group meeting on 12 July 2002).

Incorporation of the Charter and ECHR Accession: General Issues

5. The case for and against incorporation of the Charter can only be appraised in light of two other issues: the extent of defects in the current system of human rights protection in the EU and the issue of EC or EU accession to the ECHR (accession and variations upon it is considered more fully in Part II). On the first point, while the EU legal order has developed a fairly complex system of human rights protection as a result of the case law of the Court of Justice, later bolstered by Article 6(2) of the EU Treaty, there are several problems with this system. One is the limitations on the jurisdiction of the Court of Justice. Of course, a change in the legal status of the Charter could not per se change this, and so this issue is considered separately further below. A second problem is the legal uncertainty as to precisely which rights are protected as part of the general principles of EC law, and the precise meaning, scope, conditions and limits upon those rights. Thirdly, there is a risk of divergence and conflict between the rights recognised as general principles of EC law and the rights recognised in national legal systems, even leading to the prospect that human rights will be less protected as a result of the development of the EU. This is particularly (but not solely) the case as regards divergence between the rights in the ECHR and the rights applicable as general principles of EC law. Fourth, it is arguable that the rights protected by EC law are not 'visible' to the public and thus not sufficiently comprehensible or transparent.

6. Incorporation of the Charter would clearly go some way to solving the second to fourth main problems identified. There would be a precise list of rights protected in EC law. Although this would not led to perfect legal certainty, as the rights would still be open to interpretation and it is possible that the list of rights in the Charter would not be exhaustive (see discussion below), it would lead to more certainty than present. After all, rights are always subject to some interpretation, so perfect legal certainty is not attainable. As for the ECHR, Article 52(3) of the Charter, although needing clarification (see below) requires more consistency of EC law rights and ECHR rights than is required under the present system, in which the EU Courts are merely 'inspired' by the ECHR as a source of general principles, and not required to apply it or the case law (see the admission of Judge Skouris in working paper 19 of the working group, along with, for example Cases C-356/98 Kaba I [2000] ECR I-2623 and T-112/98 Mannesmannrohren-Werke v Commission [2001] ECR II-729). While some have pointed to a risk of divergence between Charter rights and ECHR rights, this criticism overlooks the risk of divergence already in the current system (which many argue has already occurred in a number of competition judgments) and the likelihood that Article 52(3) would improve the current situation. Finally, it is clear that enhancing the legal status of the Charter would likely make the human rights protected by EC law more visible and transparent to the public, although again this is partly dependent on whether the rights in the Charter are exhaustive or not.

7. How does this compare with accession to the ECHR? First, accession would not solve the problem of limited EC court jurisdiction either. Second, accession would increase legal certainty more dramatically than the Charter as regards the rights in the ECHR, although it would not have any effect on those rights (whether inside or outside the Charter) which are not listed in the ECHR. Third, accession is obviously the best way to eliminate divergences between the ECHR and the rights protected as general principles of EC law, although it will not reduce divergences between those human rights in EC law which have sources other than the ECHR. Fourth, accession would make the rights somewhat more visible and transparent, particularly as the ECHR is a relatively well-known and accessible source of rights. But given the other sources for the rights in EC law, it would not make all those rights visible. Although an enhanced status for the Charter would possibly also fall short of making all rights visible, it would certainly make far more of them visible.

8. So taken as a whole, accession to the ECHR would be manifestly better than the Charter at solving two of the four problems identified above. It would be equal as regards a third problem and modestly worse as regards the fourth--although if a choice must be made then protection of the substance of rights is surely more important than securing their visibility. In addition accession to the ECHR would bring with it other benefits identified in Part II below, which the Charter could not bring; and as discussed in the same part, there are no significant drawbacks to accession to the ECHR.

9. But we are not forced to choose between an enhanced status for the Charter and accession to the ECHR. Moreover, an enhanced status for the Charter would not interfere with accession to the ECHR, as Article 52(2) of the Charter would function as a 'liaison' clause between the rules in the Charter and the Community's (or Union's) international obligations. Moreover, accession to the ECHR might take some years to negotiate and ratify, and it is possible that negotiations or ratification would be unsuccessful. Since the enhanced status for the Charter could take effect immediately with ratification of the next set of amendments to (or the replacement for) the EU Treaty, it would create effects for some years to come before ECHR accession. In any event, the Charter contains rights above and beyond those in the ECHR. For these reasons, the prospect of an enhanced status for the Charter should still be considered in detail, even though ECHR accession is a more desirable development as regards ECHR rights.

Issues of competence

10. Much has been made of issues of EU competence in discussions of the Charter and of accession to the ECHR. Unfortunately, a large percentage of the commentators in the Convention seem unfamiliar with the case law of the Court of Justice on this issue. It is clear from this case law that human rights only apply as part of the general principles of EC law where as regards the validity and interpretation of EC law, its implementation by Member States and Member States' derogations from the market freedoms in EC law (and it might be argued that the principles also apply when Member States derogate from other EC law rules). The Court of Justice has on a number of occasions refused to rule on human rights issues in cases where there is no link with EC Treaty rules or EC legislation (see particularly Cases 12/86 Demirel [1986] ECR 3719; C-159/90 Grogan [1991] ECR I-4685; C-144/95 Maurin [1996] ECR I-2909; C-299/95 Kremzow [1997] ECR I-2629; C-291/96 Grado and Bashir [1997] ECR I-5531; C-309/96 Annibaldi [1997] ECR I-7493). If the interpretation of Article 51(2) of the Charter follows this case law, as the drafters of the Charter apparently intended it to do, there appear to be no grounds to fear that the Charter will impinge upon Member States' competences. In particular, there are no grounds for the fears about specific issues outlined by UK government representatives (see the table attached to working document 4 of Baroness Scotland and the comments of Peter Hain before the House of Commons (para. 53 of testimony on 16 July 2002; and see further paras. 19 and 20 below)).

11. The current wording of Article 51 already appears adequate to ensure that the Court's case law is still applicable. This is equally true of the obligation to 'promote the application' of the Charter in Article 51, for this is expressly only to take place 'in accordance with [the] respective powers' of the Union and the Member States. However, in light of the concerns expressed by Member States, modest changes to Article 51 to clarify this point could be useful, for example to refer to the provisions on competence in the Treaties. It appears that some changes have already been agreed by the working group (outcome of discussions of the 17 Sept. meeting).

12. As regards competence issues and accession to the ECHR, there are a large number of 'mixed agreements' which both the Community and the Member States have ratified. The ECHR could simply become another one. It could simply be expressly provided in the Treaty provisions giving the EC/EU power to accede to the ECHR that accession would not alter the division of competence set out in the Treaty; this could alternatively or (preferably) additionally be set out in the accession treaty itself (see working document 18 of the working group (page 4)). (On ECHR accession and competence, see further paras. 43-45 below).

Part II: The Charter

13. The benefits of an enhanced status for the Charter were outlined above. What are the possible drawbacks? To answer this, it is first necessary to identify the sources of the substantive rights in the Charter. There are three (really four) sources: the ECHR, the EC Treaty (and purportedly the EU Treaty), and 'other' sources, which can be divided further into the 'common constitutional traditions' of the Member States and other international human rights treaties. These two other sources should be stressed: the rights in the Charter not stemming from the ECHR and the EC Treaty do not all have their sources in the common constitutional traditions of the Member States, as some papers submitted to the working group and records of group discussion seem to suggest. This is clear from the preamble to the Charter and repeated references to other international human rights treaties in the text of the explanatory memorandum to the Charter. The confusion on this point may stem from Article 6(2) of the EU Treaty, which misstates the case law of the Court of Justice: while Article 6(2) refers to national traditions and the ECHR, the case law of the Court clearly refers to national traditions and international treaties upon which Member States have collaborated; the ECHR is the most important source, but not the only one. For instance, even after Article 6(2) (then Article F(2)) came into force, the Court of Justice examined the International Covenant for Civil and Political Rights (ICCPR) in the Grant judgment (Case C-249/96 [1998] ECR I-629).

ECHR Rights in the Charter

14. The relation of the Charter to the ECHR rights has already been discussed above: it would enhance the status of ECHR rights and help to reduce divergences as compared to the current system, although accession to the ECHR would do more on this front. However, there is a strong case for clarification of Article 52(3) as regards two issues: the limitations on ECHR rights and the scope of its application.

15. On the first point, at first sight, it appears that Article 52(3) does not require the limitations on ECHR rights to be applied to the identical provisions of the Charter. This interpretation is supported by the references to 'conditions' and 'limits' in Article 52(2), whereas the same words are left out of Article 52(3). While the explanatory memorandum to the Charter states that the ECHR limitation clauses should apply to all the Charter rights that copy ECHR rights, this is not obvious from the text; and while two speakers to the human rights group thought that the ECHR limitations obviously would apply, a third speaker disagreed (report of working group meeting on 23 July 2002, Conv 223/02). In fact, the present record of the EC Courts on this point is not always encouraging: while there are some detailed references to the ECHR limitation clauses and principles (for instance, Case C-60/00 Carpenter, judgment of July 11, 2002, not yet reported) sometimes the ECHR rules have been completely ignored in favour of the Court's own (fairly weak) set of limitation principles (for instance, see the approach to Article 11 ECHR Joined Cases T-222/99, T-327/99 and T-329/99 Martinez and de Gaulle, Front National and Bonino and others v. European Parliament, judgment of 2 Oct. 2001). With the involvement of the EU in asylum and extradition issues, there is now a prospect that EU law will permit limitations or derogations on rights which are non-derogable under the ECHR (Articles 2 and 3, in particular). This is not a purely theoretical prospect, as the Commission has already made the false and disturbing assertion that human rights law permits expulsion of persons in need of protection in 'public order and national security' cases (Green Paper on Return, COM (2002) 175). This clearly contradicts the case law on Article 3 ECHR and so presumably the Commission is either ignorant of this case law or hopes to overturn it, perhaps by arguing that limitations on Article 3 rights are permitted in EC law.

16. On the second point, while the explanatory memorandum to the Charter identifies which Charter provisions are covered by Article 52(3) and what precise limitations apply because of Article 52(3), the memorandum is not legally binding and one speaker to the human rights working group thought that the position was still unclear (report of working group meeting on 23 July 2002, Conv 223/02). It would therefore be best to clarify the point. Article 15 of the Convention (the derogations clause), which is also relevant to the first point, should also be mentioned expressly.

17. The first and second points can be addressed simultaneously by a simply redrafting of Article 52(3) of the Charter, without copying all the detailed limitation rules of the ECHR, as follows:

"The meaning and scope of the rights recognised by Articles [x, y, and z] of this Charter, along with the conditions and limits on those rights, shall be the same as those laid down by Articles [x, y and z] respectively of the Convention for the Protection of Human Rights and Fundamental Freedoms, along with Article 15 of that Convention."

EC law rights in the Charter

18. There is no reason to be concerned about the inclusion of EC law rights in the Charter, as long as it is clear that the mere inclusion of those rights in the Charter does not alter their meaning. Unless a separate Court were created to enforce the Charter there is no risk of divergence between Charter rights and EC law rights. Since one speaker, despite Article 52(2) and the explanatory memorandum to the Charter, was concerned that the meaning of and limitations upon the EC law rights in the Charter might still be unclear (report of working group meeting on 23 July 2002, Conv 223/02), it would again be best to clarify the point. Article 52(2) could be redrafted in a similar way to Article 52(3):

"The meaning and scope of the rights recognised by Articles [x, y, and z] of this Charter, along with the conditions and limits on those rights, shall be the same as those laid down by Articles [x, y and z] respectively of [this Treaty][the treaties establishing the European Union and the European Communities]".

There might also need to be a reference to general provisions of the Treaty (or Treaties) which could also have a bearing on possible limitations or interpretation of the EC Treaty rights. Alternatively Article 52(2) could merely identify which Charter provisions fall within its scope, without identifying which EC or EU Treaty provisions are relevant for interpretation.

Other rights

19. If the relationship between the ECHR and the Charter can be clarified, the core of the dispute over the Charter's status is therefore the effect of the other rights. In particular, the submissions of Baroness Scotland to the working group and the comments of Peter Hain to the House of Commons EU committee raise a number of concerns about those rights (para. 10 above). The example Peter Hain used was that, in his view, the Charter would prevent the German government from stopping strikes in essential services. To solve this issue, Baroness Scotland has suggested a new 'horizontal clause', although the addition of such a clause appears controversial within the working group (summary of proceedings on Sept. 17).

20. This discussion, according to the information available on the working group
proceedings, seems to be problematic in a number of respects. First of all, the initial document from Baroness Scotland and the comments by Peter Hain indicate that
most of the concerns about the Charter provisions not based on ECHR or EC/EU
rights were about the possible effects of those provisions on EU competence. But for the reasons set out above, it appears that those concerns are misdirected, and will be clarified by amendments to Article 51 (see para. 10 above). Simply put, a huge proportion of the possible effects listed in Baroness Scotland's paper simply cannot occur because of the Charter's clauses on competence; nor, for the same reasons, is Peter Hain's example of the effect of the Charter plausible.

21. Secondly, Baroness Scotland argues that the third category of rights lacks a
clause concerning limitations or definitions. While it is certainly true that there is no definition clause, it would seem clear that Article 52(1) is a limitation clause for these rights. In fact, it is hard to see what else Article 52(1) is referring to. Moreover, in itself Article 52(1) provision would answer Peter Hain's concern about striking Germans, even if the Charter extended to such measures, for it would provide justification for limiting the right to strike.

22. Thirdly, and most importantly, the entire working group appears to be assuming that the 'third category' of rights essentially consists of those rights based on the common constitutional traditions. If this is the view of the working group, it is hugely in error. It is clear from the Cologne Declaration, the preamble to the Charter, the case law of the Court, the explanatory memo to the Charter and the EC and EU treaties that an important source of both human rights as part of general principles of EC law and of the Charter rights are international human rights treaties other than the ECHR. Unfortunately this source is not mentioned in Art. 6(2) TEU--perhaps this is what has misled the working group. But the memo to the Charter mentions no fewer than 7 treaties besides the ECHR as sources (the ICC statute, the initial and revised Council of Europe Social Charter, the Convention on human rights and biomedicine, the ICCPR, the Council of Europe data protection convention, and the Geneva Convention on refugees), plus two non-binding measures (the Universal Declaration and the Community Charter of workers' rights). More could be mentioned besides (the ICESCR, ILO Conventions, CEDAW, CERD).

23. This is an important point because definitions and limitations can be derived from the relevant treaties. See, for instance, Article 30 of the original CoE Social Charter on limitations. There are also decisions of monitoring bodies which can be taken into account. A new horizontal clause could be crafted by reference to such measures.

24. Fourthly, working paper 4 from Baroness Scotland objects that certain rights in the Charter have not been agreed to by the UK (or some or all other Member States) as they are only found in ECHR Protocols, or that the ECHR does not cover those rights. This is a major reason for her argument that the Charter needs a new horizontal clause (and perhaps also a major reason for the UK to object to enhancing the legal status of the Charter). However, a close look at these substantive objections reveals that this criticism is misplaced as regards many rights:

a) the education clause in the Charter is similar to Art. 13 ICESCR (here the explanatory memo to the Charter is defective in not pointing this out);
b) the ban on collective expulsions also results from the jurisprudence on art 13 ICCPR
(as the explanatory memo implies);
c) the non-discrimination clause in the Charter is similar to art 26 ICCPR;
d) Directive 2000/78 already covers third-country nationals with disabilities (it only excludes from its scope distinctions related solely to immigration status);
e) the UK has accepted the Schengen provisions on cross-border double jeopardy rules, and all MS accept the internal double jeopardy rule in art 14 ICCPR.

25. As for the status of rights and principles if not found in the ECHR or EC Treaty, a general clause could be drafted to set out the meaning and scope of the rights based on international human rights treaties (a very large proportion of these provisions). This should take into account that the CoE Social Charter Part II provisions are clearly binding ('Member States undertake to consider themselves bound') and the ICESCR creates an obligation to ensure the rights in that Covenant progressively. So the number of Charter provisions which are not based on binding international law or EC Treaty obligations is relatively small (for instance, environmental and consumer provisions). Perhaps this additional general clause could also summarise the effect of these principles.

26. As for those Charter provisions whose source is the common constitutional traditions of the Member States, there are few provisions for which this is the sole source--and for those which are also based on the ECHR, Article 52(3) would apply. The remaining provisions either have limited impact due to the limitations on EC competence (the right to conscientious objection) or the effect of those rights is established in existing case law (the right to carry on a business).

27. This leaves the question of the legal effect of these 'other rights'. The most controversial of these are social rights. At present, while it is clear, as noted above, that such rights are binding in international treaties (the previous report from the House of Lords on this subject unfortunately was in error in suggesting that these non-justiciable rights are not binding), there is no international court to enforce such rights at present and to some extent (as regards spending programmes) it may be inappropriate for a court to have such power. although this is less of an objection as regards employment rights, which are clearly justiciable. So a general move to enforce the international social rights through means of binding court decisions (rather than the current system of monitoring bodies and, for the CoE Social Charter, collective complaints) would be a radical step. However, because of the limits on EU competence, it would seem that, in the context of the Charter there would not be any significant impact from enhancing the status of the Charter in such a way.

28. As for the 'other rights' besides social rights, they are either binding already as part of the general principles of EC law (the right to carry on a business), in which case the Court of Justice could reasonably be expected to continue to apply its existing case law (subject to the wording of the limitations clause in Article 52(1)), or the impact of making them binding would be limited by the EU's limited competence (para. 26 above).

Other issues concerning the 'horizontal provisions'

29. There are several issues here. First, it could usefully be clarified whether the general limitations clause in Article 52(1) also applies to the other two paragraphs of Article 52. In particular the current wording adds to the concern that the ECHR rights could be subject to limits wider than permitted by the ECHR itself. Therefore Article 52(1) should be moved and reworded so that its subsidiary status in relation to the other two paragraphs is clear. Secondly, there is a problem with the substance of Article 52(1), which is an attempt to preserve the ECJ's unfortunate case law on limitations on rights, which sets standards below most human rights treaties. The reference to preserving the 'essence' of rights should be dropped as it does not conform to international standards and appears to permit too much room to limit rights. Also, it should be specified, along the lines of most international instruments, that any limitations must be 'necessary in a democratic society'. Thirdly, it might be useful to clarify Article 53 to establish that the supremacy of EC law is not affected by the Charter--although this would not be necessary if the suggestions mooted in other working groups to refer to supremacy expressly in the treaty is accepted.

Method of Incorporation

30. The strongest case is the case for making the Charter fully part of the Treaties, or a Protocol to the Treaties (which would have the same legal effect). It would be necessary to make technical changes to Articles 51 and 52, as the working group has already agreed (outcome of discussions, 17 Sept. 2002). The case for this is that the Charter should be made as effective as possible, given its potential role in securing more uniform interpretation of ECHR rights, enhancing the status of human rights within the scope of the EU legal system, and securing the credibility of the EU's advocacy of human rights in third countries. Moreover, there could be doubts about the legitimacy of any EU 'constitutional treaty' that does not contain human rights as an integral part of its provisions. Concerns about the effect of the Charter on competence and the application of the 'other rights' in the Charter not found in the ECHR or the rest of the Treaties have been addressed above.

31. The alternative approaches to this issue would not be satisfactory. The status quo would not move the EU toward any of the goals which full Charter incorporation would achieve. Attaching the Charter as a 'solemn declaration' would only marginally enhance its current status; in fact, given the hopes raised by the Convention process, its status might be lowered. Above all, a failure to make the Charter binding or provide for accession to the ECHR as a result of the next IGC would raise serious questions of credibility and legitimacy as regards the EU's commitment to human rights.

32. As for lesser forms of binding status, referring to the Charter as an additional source of the general principles of EC law in Article 6(2) TEU would leave open questions as to possible conflict between the Charter and the existing general principles. For example, would the EU still be merely 'inspired by' the ECHR provisions or would the more stringent rule in Article 52(3) of the Charter apply? Referring to the Charter as the only source of human rights general principles of EC law would leave the Court of Justice open to merely be 'inspired' by the Charter, thus weakening the advantage of having a more precise list of rights, in particular weakening the added conformity with the ECHR that Article 52(3) would bring. Deleting the existing sources mentioned in Article 6(2) TEU would also be undesirable in itself (see para. 34 below).

33. A direct reference to the Charter in the main text of the treaty or a preamble would be nearly as useful as full incorporation of the Charter, as long as the wording made clear that the Charter was binding. However, a fuller incorporation of the Charter in the Treaties would be useful for symbolic reasons.

34. An inevitable question is whether the existing wording of Article 6(2) TEU should be amended. It would be best to leave the existing text unamended, or alternatively to update it by referring to the Charter as the principal source of human rights rules but to make clear that common constitutional traditions and international human rights treaties other than the ECHR can still influence the human rights in the general principles of EC law. This is necessary to allow for possible development of rights on top of those listed in the Charter, in particular to allow for an 'escape route' in the event of a budding conflict between a national constitutional court and the Court of Justice, to take account of developments in national constitutional traditions and to permit potential recognition of principles in international treaties which the Charter has left out (for instance, some immigration and criminal law provisions in the ICCPR). This will leave some legal uncertainty but it is necessary to have flexibility for those reasons.

35. The Committee has also asked about the effect of Article 21 of the Charter on Article 13 EC. There does not seem to be a problem here since the former is a rule requiring EU measures and national acts implementing them to ensure application of the principle of non-discrimination, while the latter is a power for the Community to act to require the Member States to prohibit discrimination on a smaller number of grounds. By virtue of Article 51 of the Charter the Community does not have the competence to adopt legislation concerning all the grounds listed in Article 21 of the Charter. The principal effect of the latter is that, for instance, Member States could not apply the EC working time directive differently based on political opinion.

Substantive provisions

36. It appears that the EU Convention working group on human rights has ruled out the idea of changing any of the substantive provisions of the Charter. This is unfortunate, as there are several provisions that could be added or amended falling within Statewatch's particular field of interest. In particular, the access to documents clause could be amended to apply to 'access to information' and to apply to documents held by all EU institutions or bodies. Provisions based on the Fourth ECHR Protocol and the ICCPR could be added regarding procedural rights for migrants in expulsion cases. The provision on non-discrimination on grounds of nationality could be broadened to take greater account of human rights treaties (the Human Rights Committee interpretation of the ICCPR, the ECHR in the Gaygusuz v. Austria judgment) which are more critical of such discrimination than the EU legal order appears to be (see Court of Justice judgment in Joined Cases C-95 to 99/99 Khalil and others). As for criminal law, it would be useful to have provisions based on the ICCPR (and ECHR Fourth Protocol) rules on compensation for wrongful conviction and the right to a criminal appeal. As all Member States have ratified the ICCPR, there can be objection on the grounds that a few Member States have not ratified the Fourth Protocol.

Part II: EU Accession to the ECHR

The Case for Accession

37. As advocated by members of the Convention human rights working group (working papers 15 and 18) and by the House of Lords in its last report on this subject, EC/EU accession to the ECHR would bring with it many positive advantages. It was noted above (para 7) that accession would increase legal certainty and eliminate divergence between the two legal orders as regards application of ECHR rights. Also, it would ensure external review of the EU institutions (including the Court of Justice). Accession would also permit the EC/EU to defend itself more directly before the Strasbourg court, given that its measures are to some extent now subject to 'indirect review' in Strasbourg. The EC/EU could also participate in the enforcement system following Strasbourg judgments and having a judge on the Strasbourg Court where the EC/EU is a defendant would be useful. Finally, it would reassure citizens (and national courts) that the Union is not 'above the law' as far as human rights are concerned, an assurance necessary in particular as the Union's competences expand well beyond economic integration to include security issues where human rights concerns are more frequent.

38. What about the objections to accession? As advocates of accession have pointed out, accession would not threaten the autonomy of Community law, as the Strasbourg court only has power to award damages and costs as a result of any finding of violation of the ECHR, if the applicant is successful. It would fall to the EU institutions and/or Member States to amend any legislation or implementing measure criticised for breach of the ECHR. Nor would accession necessarily alter the division of competence between the EU and its Member States (see further paras. 10-12 above).

EU legal personality

39. Several points of detail should be examined. First of all, should the EU accede to the Convention instead of or in addition to the EC? Here it seems clear that the Convention working group on the legal personality of the EU strongly supports official recognition of a legal personality for the Union, which would absorb that of the Community, though probably not Euratom (see the draft final report, working document 29 of that working group). In such a case it seems logical to provide that the merged Union can (or must) accede to the ECHR. Accession by the full Union is important because the internal security aspects of the Union third pillar raise obvious human rights issues and the external security aspects of the second EU pillar can fall within the territorial scope of the ECHR in certain cases, for example where an EU force controlled part of the territory and/or administration of an area outside the EU (see the Bankovic v UK and others decision of the Strasbourg court).

Procedure for accession

40. Secondly, what procedure should be followed for accession? The two texts submitted to the working group so far do not address this issue. A reference to Article 300 EC (the provision on external relations procedure) has been suggested (see working group paper 18), but this would not be sufficient because Article 300 refers in turn to the procedures concerning the EC's internal powers to determine the procedure for signing and concluding external treaties (although a reference to Article 300 would settle the issue of the negotiator, as that Article gives all negotiating power to the Commission). So there needs to be a specific provision on how to sign and conclude the accession treaty. The best approach, given the importance of the issue, is to provide that the Council must be unanimous throughout the procedure (giving a negotiating mandate to the Commission, signing and concluding the final text) and that the European Parliament must give its assent to conclusion. This procedure should also apply to the 'Union' aspects of the accession treaty, to avoid complications of having different procedures for approval 'Community' and 'Union' accession (see the discussions on this topic in the working group on legal personality, which is considering a single Article for conclusion of treaties by the 'Union' in future). It would also be useful to provide in this 'legal base' for the general power for the Union to adopt internal measures related to accession. Such a power could be useful, for instance in deciding who becomes the Union's judge on the Strasbourg court or how the Union's position as a defendant will be decided. It would also be useful to provide for an internal EU law obligation in the future revised EU Treaty to review EU measures and/or related Member States measures following an adverse judgment of the Strasbourg Court, and to take any necessary action expeditiously.

The Protocols

41. The next question is whether the EU should ratify any of the substantive protocols to the ECHR (logically it will have to ratify the procedural Protocol 11). There should be no qualms about ratifying the First and Sixth Protocols, as all Member States have ratified them. As for the Fourth and Seventh Protocols, they have been ratified by a large and slim majority of Member States respectively, but after accession they will each have been ratified by a very substantial majority of Member States--in large part because the EU itself requires new (but not existing!) Member States to sign all substantive Protocols. On the one hand, the minority Member States (like the UK) which have not ratified these Protocols will likely wish to preserve their position, but on the other hand the large majority may have cause to concern that EU integration will threaten their obligations under these Protocols, if the EU is not a party to them. A possible compromise solution is for the EU to ratify all the Protocols with a reservation either preserving the effects of the minority Member States' failure to ratify even as regards EU matters applying to that Member State, or alternatively (and more coherently) preserving the effects of the minority's failure to ratify within Member States' competence. The same approach could be applied once the Twelfth and Thirteenth ECHR Protocols come into force. A comparable approach was followed as regards the EC's ratification of the Council of Europe data protection convention, which the EC ratified explicitly without affecting three Member States' 'opt-outs' from Title IV of the EC Treaty.

Reservations

42. As regards reservations by Member States to the ECHR and its Protocols, EU ratification of the ECHR could be accompanied by a reservation preserving the effects of Member States' reservations within Member States' competence. It would have to be decided separately whether the EU wished to make its own reservations covering the Union as a whole; but it would be unacceptable for the reservation of a single Member State to apply to all Union activity, for that would mean one Member State's reservation having effects in all the other Member States who have not made such a reservation, breaching their obligations under the Convention.

Declaration of competence

43. What about the idea of a declaration of competence by the Union? It has been suggested that the EU could make a declaration of competence when ratifying the ECHR, referring to the EC declaration when signing the Law of the Sea Convention (page 4 of working document 15, referring to the view of the Commission legal service staff member). While this approach would at first sight appear to offer clarity as to which party to sue, in fact such declarations of competence usually (and correctly) define the relative powers very generally and state that the EC and Member States share many powers and that EC competence is liable to change over time. So little clarity would (or could) result. Moreover, such declarations are invariably controversial (one of them is being challenged before the Court of Justice: Case C-29/99 Commission v Council) and difficult to negotiate, even in limited fields. A declaration to the ECHR accession, which would necessarily cover the entire field of Union activity, would amount to drawing up a 'catalogue of competences' for the Community/Union, an idea which the EU Convention has already rejected as not feasible. In fact such declarations are fairly rare in certain important areas of EC external relations: there was no declaration to the WTO agreements and association agreements never contain such statements. More broadly, the very existence of such a declaration would likely draw the Strasbourg court into interpreting the extent of Union competence--something which is not competent to do.

44. The alternative, more realistic and practical approach, is to focus concern on providing for an effective system for determining whether or not the substantive ECHR rights have been breached, rather than trying to determine whether the responsibility is that of the EU, the Member State(s) or both. It follows that the accession treaty should contain provisions allowing the Union and a Member State (or multiple Member States) to become joint defendants by means of a simplified procedure, even where a plaintiff might be determined to sue only one or the other. Otherwise the Strasbourg Court could become a forum for plaintiffs to pursue their arguments about Union competence (whether seeking to limit or expand that competence) simply by means of designating one defendant rather than another. Since the EU Convention seems likely to enhance the political and judicial means to enforce the limits on Union competence, and to clarify the limits on that competence (see the working groups on subsidiarity, complementary competences and national parliaments), Strasbourg would be even more clearly the wrong place to bring such disputes. It should be left to the EU and its Member States, following an adverse Strasbourg judgment, to determine which of them needs to act to give effect to the judgment.

45. As an alternative, if some provision on competence were felt to be necessary, a general provision based on Article 51 of the Charter could be inserted. Where only an EU institution or body is responsible for an alleged breach, the EU alone would be a party, but where a breach results from a Member State implementing EU law, then both that Member States (or multiple Member States where relevant) and the EU should be defendants. This should also extend to a case not explicitly mentioned in the Charter: where a Member State is derogating from EU rules, where at present the general principles of EC law would apply, including the human rights rules (see most recently Case C-60/00 Carpenter, judgment of 11 July 2002).

Margin of appreciation

46. It has been suggested that the EU treaty of accession to the ECHR deal with the issue of the 'margin of appreciation' to be granted to the Union under the Convention. There seems no reason to address this issue in accession treaty, given that the principle is a judicial creation, its scope and impact is controversial, and it would be difficult to lay down rules on the application of this principle in advance of particular cases. Negotiating on substantive issues like this could considerably delay conclusions on negotiations on an accession treaty.

EU bodies

47. On the other hand, the accession treaty could usefully clarify that the obligations of the 'European Union' (along with, where relevant, its Member States) extend to the acts of all institutions and bodies created by the Treaties or by EU legislation or other EU measures, in particular Europol and Eurojust. This will ensure that it is possible to hold such entities for account in the event of human rights concerns about their behaviour. As creations of the EU legal system, the actions of these entities should engage the responsibility of the EU even where the bodies in question are entirely independent of control of the EU institutions or the Member States. This is a fortiori necessary if the EU creates a European Prosecutor: it is inconceivable that such a prosecutor should exist without being subject ultimately to review before the Strasbourg court. Conceptually, this is no more problematic than the established principle of holding central governments responsible internationally for the actions of sub-central governments, even if the sub-central governments are constitutionally independent. However, it is not suggested that this approach should apply to the EU and its Member States, as the Member States are clearly not creations of the EU's legal order.

Exclusive jurisdiction

48. The Council of Europe report on EU accession appears to suggest that the Council of Europe cannot consider compromising the principle that Contracting Parties to the Convention can only settle disputes about the Convention by using the Convention organs. The prospect of EU Member States suing the EU within the Strasbourg system should not be permitted, because the EU's Member States have the possibility to challenge the EU's actions within the EU legal system for breaches of human rights first. In comparison, to take the examples of actual Strasbourg inter-state cases, it is rather more difficult for Ireland to challenge British government actions in the UK courts directly or Denmark to challenge Turkish actions in the Turkish courts. Undoubtedly permitting Member States to have a second challenge to the Union in the event that the Court of Justice rules against their human rights argument would impinge rather more directly on the autonomy of the EU legal order than would permitting individuals to challenge the EU in Strasbourg, as individuals would always have to be 'victims' of Union action to bring a challenge and would likely in many respects be complaining about national implementation of EU acts. Since the central purpose of the ECHR system is to provide for the protection of individual rights, not to determine the rights and liabilities of states to each other or to consider internal disputes between an international organisation and its members about the validity of the organisation's acts, Strasbourg is not the proper forum for such disputes.

Direct Effect of the ECHR

49. The point has rarely been discussed in any detail, but it should be recalled that the Court of Justice has repeatedly held that provisions in treaties concluded by the Community can confer direct effect if the 'nature and purpose' of the treaty does not preclude this and the provisions in question are 'clear, precise and unconditional'. There is a strong argument that the ECHR will meet both criteria. The direct effect of the ECHR could be precluded by an express provision in the future EU Treaty, within the treaty of EU accession to the ECHR itself, or purportedly in the Council decision concluding the treaty of accession--although the legal effect of the third possibility would be highly questionable. There are precedents for all three possibilities (respectively Article 34 EU, the schedules to GATS and the Council Decision concluding the WTO). In any event, any such express restriction on direct effect should be rejected. Any restriction on the legal effect of the ECHR within the EU legal order would inevitably leave many of the current problems concerning the EU/ECHR relationship unsolved and would give rise to a justified concern that the EU did not take human rights seriously.

Alternatives to accession

50. The 'functional' alternatives to ECHR accession of the EU are not worth considering--particularly the idea of becoming bound without participating in the ECHR machinery. The EU is entitled to defend itself before the Court, to have a judge on the Court
familiar with the EU system and to participate in the enforcement machinery. There is no convincing ground for limiting its capacity in these respects. On the other hand, a provision for references to the ECtHR from the ECJ would be useful in addition to accession--but certainly not as an alternative for the reasons given above.

Part IV: Other Issues

Other human rights treaties

51. Opinion 2/94 is not clear as regards whether the EC (or in future, the EU) could accede to other international human rights treaties. It is arguable that this issue was left open by that Opinion, and that in light of EC competence over social matters and now immigration and refugee law in particular, the EC has competence to accede to UN discrimination treaties and the 1951 Geneva Convention on refugee status (following the adoption of the proposed directive on the definition of 'refugee'). Given the development of its 'second pillar' powers, it could be desirable for the EU to ratify in particular the Geneva Conventions on the laws of armed conflict and their Protocols and the Rome Statute on the International Criminal Court. For the avoidance of any doubt, the EU's competence to accede to such treaties should be specifically set out in the future EU treaty.

ECJ and Justice and Home Affairs

52. There are several other issues on the agenda of the working group, essentially relating to the Court of Justice. The first of these is the alignment of the Court jurisdiction relating to justice and home affairs with the regular jurisdiction of the Court. This would entail permitting all national courts (instead of final courts only) to send questions relating to immigration and asylum law, permitting all national courts in all Member States to send questions to the Court of Justice on policing and criminal law (at present the UK, Ireland and Denmark have an opt-out and Spain permits only final courts to refer), permitting individuals and the European Parliament to bring direct challenges, allowing the Commission to sue Member States as regards faulty implementation of third pillar 'decisions', 'framework decisions' and 'common positions' and abolishing certain 'public order' restrictions on the Court's jurisdiction in these areas (see Article 68 EC and Article 35 TEU).

53. All of these changes would be desirable. Permitting all national courts to send immigration and asylum questions to the Court of Justice would enable the conclusion of such cases earlier and prevent divergences in implementation of Community law on these subjects, which is desirable from the perspective of human rights and the fair and efficient functioning of asylum and migration law. It particularly would enable a more effective indirect challenge to Community legislation on this area (given that, according to the Court of Justice, national courts cannot rule that EC acts are invalid without first obtaining the opinion of the Court of Justice). In fact, the current limits on such indirect challenges to immigration and asylum law is highly questionable from the perspective of Article 13 ECHR and the EC law general principle of effective remedies and access to a court.

54. Permitting all national courts to send references on criminal and policing matters would again prevent divergences in implementation of the legislation and enhance the protection of human rights, in particular to ensure that there is a possibility to challenge EU rules indirectly (the absence of such a possibility is highly questionable from the perspective of Articles 6 and 13 ECHR and the EC law general principle of effective remedies and access to a court). The UK's opt-out from the possibility of sending references does not prevent Court of Justice rulings from having an effect on the UK. For example, if the UK requests Germany to execute a European arrest warrant or Belgium to freeze or confiscate funds, the national courts in those countries may send questions to the Court of Justice on the interpretation of the relevant framework decisions, or follow Court of Justice rulings in similar prior cases, before complying. In fact, it is possible that national judges in other Member States will more reluctant to cooperate with the UK because of our opt-out.

55. The ability for individuals to bring direct challenges would further ensure the application of Articles 6 and 13 ECHR and the EC law general principle of effective remedies and access to a court, particularly if individual access to the Court is widened more generally. As for the European Parliament, it is anomalous that it cannot defend its legislative prerogatives in this area by judicial action. Giving the Commission the ability to sue Member States regarding implementation of all instruments (rather than just Conventions) would ensure greater uniformity of implementation of measures, and in particular would be useful as regards existing or planned EU measures concerning the rights of suspects, defendants or victims of crime. Finally, the 'public order' restrictions on the Court's jurisdiction prevent effective and uniform scrutiny of national decisions when human rights are most at stake.

56. It is also necessary to consider specific provisions on judicial control of EU agencies in this field: Europol, Eurojust, and the EU border control coordinators (SCIFA+), along with any future bodies to be set up. Allowing direct challenges to actions of these bodies is vital to ensure effective judicial protection for human rights.

Data protection and justice and home affairs

57. At present Article 286 EC, on data protection rights as against the EC institutions, does not apply to policing and criminal law matters, and in fact there are no general rules agreed on this subject. It would therefore be useful to extend Article 286 to third pillar matters, if necessary adapting it to the specific features of police and criminal law, so that Europol, Eurojust and any future bodies are covered by it.

Role of the EU ombudsman

58. The EU ombudsman has suggested that he have power to enforce the Charter (and one could add the ECHR) by bringing challenges in the EU court system (Conv 221/02). This could be useful, particularly if the access to the Court is not liberalised significantly. References in the Treaty to the ombudsman's power to examine complaints regarding human rights and his relationship with a network of national ombudsmen relating to national implementation of EU law would also be useful (ibid.).
Other monitoring bodies
59. In light of the existing office of the Ombudsman, it is questionable whether a new body needs to be created to oversee implementation of the Charter, although provisions requiring the institutions to consider human rights obligations during the decision-making (including legislative) process would be useful.

Statewatch, 2 October 2002 (evidence prepared by Steve Peers)