CELS Lunchtime Seminar: 'Consolidation or Fragmentation: Is EU Accession to the ECHR (Still) Worth It?'

Speaker: Professor Tobias Lock, Maynooth University 

Title: "Consolidation or Fragmentation: Is EU Accession to the ECHR (Still) Worth It?" 

Abstract: Last December marked five years since the Court of Justice of the EU (ECJ) handed down Opinion 2/13 on the draft agreement on the EU’s accession to the ECHR. It identified two key hurdles to accession, for which there are no easy fixes: one relates to the Common Foreign and Security Policy and the other to the principle of mutual trust (and mutual recognition) in the Area of Freedom Security and Justice. As far as the latter is concerned, the ECJ in essence requires that after EU accession Member States could no longer be required under the ECHR to assess each other’s human rights compliance where mutual trust was in operation. 

Arguably this might result in less human rights protection compared with the status quo and thus it is worth asking the question whether less formal cooperation between the EU and the ECHR might mean better protection. In other words: is EU accession to the ECHR worth it?

The paper explores this issue in some depth by relying on the latest case law of the two courts on mutual trust/mutual recognition and their exceptions. It will then ask what would happen if the ECJ could adjudicate without having the sword of Damokles (i.e. the ECtHR) hanging over it in such cases. One can see that the pressure exerted by the European Court of Human Rights in mutual recognition cases (e.g. MSS and NS on the Dublin Regulation) has already led the ECJ to accept higher standards of human rights protection at the cost of exceptions to the principle of mutual recognition. If that pressure were no longer there, what would that mean for human rights protection in the EU? It would possibly lead to lower standards overall. And that in turn might result in greater fragmentation if the ECtHR upheld its stricter standards as far as other Council of Europe states are concerned. For instance, some non-EU Member States cooperate in AFSJ-related areas (e.g. Switzerland, see the Nada case). Would they be subject to stricter supervision by the ECHR than Member States, who – after all – were responsible for the adoption of AFSJ rules in the first place?

Hence accession might prove counter-productive and it might well be that the current pluralistic system might work better.

Enquiries to: cels@law.cam.ac.uk