Draft plans for the EU's accession to the European Convention on Human Rights are like a "three-dimensional puzzle", and the careful managing of delicate relationships will be needed to avoid tensions between countries and the respective courts, an expert has said.
The Treaty of Lisbon created an obligation for the European Union (EU) to accede to the European Convention on Human Rights (ECHR) but this has not yet happened. A draft accession agreement published in March 2023 addresses previous concerns of the Court of Justice of the European Union (CJEU), raising hopes that EU accession may finally occur.
Differences between the two systems mean that certain tensions may become visible, analysis by Dr Christine Bicknell, from the University of Exeter Law School, shows
One particular issue facing EU member states is that by implementing EU law they may occasionally breach the ECHR: and EU law may not itself be compatible with the ECHR. Pre-accession there is already a means of addressing this. However, upon accession, when the EU also may have cases brought against it directly for its actions, or become a co-respondent in proceedings involving implementation of its laws, things will become different.
There may be proceedings before the ECtHR involving acts (and law) of EU and its institutions, about the implementation of EU law, and about cooperation between EU member states. The EU has certain rigid prerequisites, and Dr Bicknell demonstrated how the ECtHR's burden of proof can be used to shine a spotlight on the implications for some of these post-accession.
The ECtHR also has complicated system of evidence - where the burden of proof falls generally to the applicant but the court triangulates and takes into account all relevant evidence available to it - and in some circumstances it may reverse the burden of proof. It frequently triangulates evidence to meet its very high standard of proof. In practice, this exposes several potential tensions in cases involving EU law.
Dr Bicknell presented to an expert workshop on the accession, convened jointly by Lex and Forum and the European Convention on Human Rights Law Review, at the Aristotle University of Thessaloniki and including academic experts and the agreement's drafters. Her presentation examined the burden of proof in cases involving EU law which will be considered by the court post-EU accession.
Dr Bicknell told the expert workshop that the EU should be rigorous in its internal review of EU law for ECHR compliance if it wants to avoid some of these tensions and conflicts.
Areas in which mutual trust and mutual recognition between EU states are also a flash point. Relevant affected areas include recognising civil law judgments of other member states, and willingness to execute them as appropriate, executing European Arrest Warrants and removing asylum-seekers to another member state.
Dr Bicknell said: "There may be tensions between the two courts, EU and member states and between member states. Standards and approaches do not appear to be the same between the two courts. The EU should equally be attentive to aspects within its laws, and subsequent protections at EU level, which might be vulnerable to challenge for non-compliance with the ECHR.
