EU and the European Convention On Human Rights

The world is not the same place it was 50 years ago, and nor is the rest of the world.

The world is constantly changing with these changes there and that includes Europe, in 50 years a lot of transformation has taken place; its issues are many and they include globalization, climate Europe change and security threats just to name a few. There is a consensus that the European countries cannot face these world issues alone but acting as one they can meet the concerns of the public.

The Lisbon Treaty aim is to break barriers and to build the united forefront that is necessary to cause positive change and modernize Europe. Modernization is necessary for the European Union to adapt to political, economical and social changes which is necessary to keep up with the expectations of the European public. The Eu should join the European convention on human rights because before the Lisbon Treaty the could not sign up to the convention as a legal entity, regardless of whether or not the 27 individual signatories are signatories. This accession will complete the EU’s system of protecting citizens fundament rights so it therefore symbolizes that the rights of the citizens is of significance for members of the EU.

It has been made clear by the Lisbon treaty, that EU accession is not an option however the question still remains as to whether the EU should join the ECHR. It clearly stated that the EU’s accessing to the European convention of human rights was not an option but a destination.

The facts remain that the European Union must join the European convention of human rights because of the Lisbon Treaty. The treaty amends the EU and the EC treaties without replacing them. The treaty came into force on 1 December 2009 and it has ended years of negotiation about institutional issues. The benefits are many, nevertheless, question still remain; therefore the aim and objective of this study is to answer the following questions; what does the Lisbon treaty do for citizens. Why does Europe need the Lisbon treaty? Would the supremacy of EU be affected by this accession? What may be the consequences of this accession? In discussing this paper reference will be made to the aforementioned benefits and issues.

What does the Lisbon treaty do for citizens?

There is an indication for the European Union to be more transparent to its member states, it citizens. There should be transparency in their activities with EU institutions, agencies offices and bodies. They need a face that the citizens can relate to. The Lisbon Treaty would make the voice of the citizens stronger. There has been no redress for any citizen prior to the Treaty, if their rights were violated, because the European Union has never been a member of the European convention of human rights any complaint that was brought to the Strasbourg court against the Eu no redress was given. Therefore Openness would create confidence and promote good governance.

One way this treaty encourages openness is by allowing the people to be a direct part of the decision making process via voting. According to The Lisbon Treaty: A Legal and Political Analysis by [Jean Claude Piris] stated “As is solemly declared in Article 10 (1) TEU, the fundamental principle governing the functioning of the EU is that ‘it should be founded on representative democracy’ For the first time the Lisbon Treaty gives the EU citizens, in addition to the other rights they already have to influence the EU decision making process, a direct right to bring a citizen so called initiative signed by not less than one million who are national of a significant number of member states.” This increased not only incorporates the voice of the people and influence the decision process but it also gives them an assurance which comes from transparency. Allowing the EU institution to be accountable would also regain the confidence in the working of the system. Prior to the Treaty if the rights of a citizen were infringed no redress was given and this created gaps that needed to be filled.

According to Protocol no. 14 and the reform of the European court of human rights by P Lemmens, Wouter Vandenhole stated ‘To close the gaps of fundamental gaps in the EU would probably be the most important reason for the EU accession to the ECHR from the citizens point of view…..the impossibility for citizens to bring complaints against the EU institution directly before the ECtHR, entails a lack of protection of EU citizens against actions of EU institutions. Moreover it seems anchoretic that the EU would be the only ‘legal space’ left in Europe which is not subject to eternal scrutiny by the Strasbourg Court.’

According to The Lisbon Treaty [Europa]2 This accession would ensure that all citizens that feel that their rights have been violated by an institution or a body of the union can bring an action before the court, against the union, with no difference to the conditions that apply to complaints brought against member states. Citizens can now sue the EU and its institutions for violating their human rights. With these new rights complaints against the EU would ultimately be addressed in the court in Strasbourg. However, in bringing a complaint to this court, all judicial remedies of its member states must have been exhausted before an action can be taken to the Strasbourg court.

It is the first time that citizens will have a chance to see who is responsible for what and know why the EU is taking action. Transparency is created with a better sense of democratic control. This also enhances the respect for decisions taken at any level.

These citizens come from different countries that are members of the European Union; therefore, they fall under member states.

Consequences of this accession

The reason why it is imperative that all member states become part of the ECtHR is to ensure that they would be subject to international law, for this reason a judge from each state is represented in the court. However when it comes to a supranational organisation such as the EU which represents the various constitutions of its member states the rules should be different. Putting such an organisation on the same level with its member states in terms of accountability may affect the supremacy of the EU in the eyes of its citizens. Consequently the question that is frequently asked is who would be the respondent? In answering such a question the autonomy of the EU must be kept in mind.

The main issue is if a citizen wants to bring a legal situation forward. Normally an individual applicant does not have a legal education but his right still exsist regardless if he consulted counsel or not. To guarantee his rights, the solutions must be straight forward, the main problem is that the eu law is mainly implemented by member states authorities. However where there is no influence, EU law member states act out their own supremacy. A good example is the Bosphous case.

In his Tobias (2010)3 article ‘Who Would be the Correct Respondent’, he highlighted these concerns; pg 1-5 The bulk of complaints from individuals made to the Strasbourg court fall under art.34 ECHR. Currently the law is that, the EU cannot be sued before the Strasbourg court for infringements of rights and any application against it, is inadmissible ratione persone. The question is what does this mean for member states? Can member states escape liability under the convention? Even if a member state does transfer liability there is no escape under the convention. This was made clear in Matthews (year) which dealt with the right to free elections that was guaranteed by the convention. With regards to member states concerning EU law, the ECtHR re-emphasised this in the following case.

The applicant in the case of Bosphorus (2006) is a clear example of a citizen from a member states enforcing the law and the events that follows the facts that unfolded is quite interesting. A company which was in turkey leased an airplane from a Yugoslavia airline company. The applicant was solely responsible for the crew and the destination and security pertaining to the plane and the running of it. A law was passed that all states should impound any aircraft in their territories in which a majority of the controlling interest was owned, controlled or run by someone from the former Yugoslavia. One of the applicants plane was impounded and the high court found that the law that required the plane to be detained did not apply to the applicant’s plane so he was not in breach as a result the decision to impound the plane was ultra vires. On appeal the Supreme Court referred the matter to the European court of justice which found that there was a violation of article 8. The applicant complained to the European court of human rights that his rights were violated. The European convention on human rights then held that the EU legal system protected fundamental rights in a manner that was equivalent to the convention. Therefore the bosphorus presumption which is where the member state had no discretion in implementing secondary law, presumed that the state acted in compliance with the convention. This presumption is however rebuttable in cases where it is clear that the protection in the concrete case was deficient.

The drafters of the Lisbon treaty however, foresaw cases like Matthew and Bosporus being a problem so they made provisions in art. (1) of protocol No. 8. to the treaty.

Nevertheless, Connolly holds a different view from the former cases. The facts focused on a labour law dispute between the EU and its employees. No respondent of any member state took action so the application was declared inadmissible. A positive action that will come out of accession of the EU to the ECHR is that it will change the result of the latter case. In that example no member state took action therefore presently it is not reviewable by the European courts of human rights.

Would the transition be a smooth one?

A concern for the legal fertanity would be the harmony between the European Court of Justice and the European Court on Human Rights. With this accession there is a need for agreement so the transition that this accession causes would be a smooth one. For a long time now however both the ECJ and the ECtHR has been seeking to adjust each other’s case law. Though they are two different courts that use two different approaches there is evidence of harmony of the convention and the EU law. Discrepancies in the interpretation of fundamental rights of the both courts would be to the detriment of citizens and member states. Over 30years the European court of justice has ruled that the European convention on Human Rights has special significance. As a result when the ECJ makes a ruling attention is paid to the convention and the starsbourg when applying fundamental rights. The rights that are most often referred to is the right to a fair trial (art 6 ECHR), the right to freedom of expression( art 10 of ECHR) the right to respect private life and family life (art 8 ECHR).

In Matthews v united kingdom where the echr found a breach in the convention in pursuant of the 1979 Act by the united kingdom, they refused to allow a resident of Gibraltar from participating in the elections of the European parliament. The United Kingdom knew that any attempts made by them to amend the 1976 Act by the eu would be opposed by Spain in regards to the Matthews judgement; the United Kingdom passed a domestic law solution and passed the European parliament (Representative) Act 2003. Spain challenged the 2003 Act and the appeal was dismissed by the ECJ and it was emphasised that eu law must be interpreted in compliance with the Matthews judgment.

Why does Europe need the Lisbon treaty?

(“Taking Europe to the 21st century”)4 The Lisbon treaty is needed because the voice of the EU will become stronger and this will be a major asset for the EU. The functions of CFSP have been combined with those of the vice president of the commission, creating an institution with ‘two hats’. The EU now would be understood better when it acts externally and their standard therefore would be higher. The EU would now have a ‘face’. For the EU to come to its full potential it has to become modern. The European Union now has 27 members, the rules that they are operating on are the previous rules used for operation when it was 15 members. It is evident that the European Union has changed so it is both wise and necessary to update its way of doing things. There is an increased support to work on issues like climate changes, energy security and terrorism. There are fundamentally 3 reasons for the treaty: the process of making decisions will be more efficient, coherency would be increased externally and a greater democracy through the role of the European parliament and national parliament. It is the only directed legal institution in Brussels. The European parliament will become a law maker to the European council. At an early stage national parliaments will be included. If it is felt that a decision is being made on a European level then a referral can be made to the European court of justice.

Vivane reding5 clearly highlights reasons why he believes the EU needs the Lisbon Treaty. He believes that the process of the EU joining the ECHR as a result of the treaty will complete the EU’s system when it comes to the protection of fundamental rights In light of this accession Reding also a looks at the charter, together with a legal and political perspective. This entry makes the EU charter of fundamental rights binding.

The charter goes further than the convention though. What it does is enshrine other rights and principles and incorporates economic and social rights that come from the traditions of member states, international instruments and from the case law from the European court of justice. The author breaks down the benefits of the accession from different points of view:

In political terms

When this accession takes place the European Union puts weight behind the Strasbourg system of judicial control externally in areas that relates to fundamental rights by integration of its legal order.

In legal terms

There is a concern with the two different courts and how they would evolve under this accession. What it will do is ensure that the court in Strasbourg and the court in Luxembourg will develop in steps. Secondly all the rights of the convention would be at the disposal of contracting parties so they can defend the human rights and conformity of its acts before the Strasbourg court. The union will have one of their judges representing them in the Strasbourg court.

Would the supremacy of EU be affected by this accession?

The article “WHAT THE EU TREATY OF LISBON DOES” (legally accurate)6 *

National Platform EU Research and Information Centre

15.02.2008 explains

The treaty which gave the EU its own constitution over and above member states is now a refurbished treaty called the Lisbon. However the people of France and Holland rejected in referendums in 2005. The EU prime minister refused to accept this and decided to give EU a constitution indirectly, but it was not called a constitution and at no time was a referendum held for fear that the citizens would reject it. The supreme courts laid down rules stating that only the Irish people could lay down their sovereignty to the EU by referendum, this was laid done in the case of Crotty 1986. The purpose of the referendum is to make the EU superior to Irish Law set out in the Lisbon treaty.

The Lisbon treaty now replaces the “The Treaty on European Union” (TEU) and “The Treaty of the Functioning of the Union” (TFEU). The details of the document included from 1957 Rome Treaty to Nice. Therefore the eu constitution that the French and Dutch rejected would now be repealed and replaced by “Constitution of Europe,” 96% of the legal content of it is implemented by the Lisbon treaty. It proposes amendments to the two treaties and thus making them constitutions of the new federal EU that Lisbon would bring about. The Lisbon treaty now makes the EU superior to the Irish constitution in all areas of EU law. The Lisbon treaty also gives the EU the constitutional form of a supranational Europe federal state and turns member states and Ireland into regions of this federation. This is done in three legal ways; (1) by abolishing the European community which has been around since 1973 and replacing it with a new Union. (2) It gives the new European Union its own legal personality and independent cooperate existence for the first time it exist separate from and superior to its member states.

In conclusion the Lisbon treaty has give citizens rights against the EU once their human rights have been violated. This was supported by Tobias in his article that was written in 2010. The voice of the EU is not only stronger but it also makes the decision making process more efficient and coherent. Finally it makes the EU supreme in all aspects; it changes the face of the EU in to a stronger force. The EU should in fact join the European Convention on Human Rights after all it is not a choice but a destination. It has been made clear in the article the variety of possibilities that this accession offers to the citizen especially who are most important, they have the right to be heard and given some form of redress if their rights were infringed by the EU.