Creation Of European Human Rights Law European Essay

Published Date: 02 Nov 2017

FACULTAD DE DERECHO

departamento de derecho constitucional

Edita ZibalytÄ—

Estudiante del Máster de Derecho Constitucional Europeo

Tratado de Lisboa. Protocolo sobre el apartado 2 del art.6 del TUE relativo a la adhesion de la union al CEDH

Coordinador:

Prof. Gregorio Cámara Villar

Granada , 2013

Content

Introduction

Creation of European Human Rights and Fundamental Freedoms Convention

Human Rights has a wide political, philosophical, moral and legal meaning. Human Rights can be defined as the values ​​that formed gradually at two levels - national and international, and the goal - to ensure the human as a biological and social beings as the existence and development. Although the Human Rights Institute of the sources can be searched even in ancient Greece, there is a Human Rights institute "blossomed" only after the Second World War in the middle of XX century. 1948 The Universal Declaration of Human Rights was first defined at the level of universal Human Rights. Subsequent international pacts identified and established the specific political, civil, social, economic and cultural rights and freedoms. 1950 European Convention of Human Rights and Fundamental Freedoms was the first international treaty which systematized these rights and for the first time enshrined the right of individual petition, giving the individuals the right to submit a complaint to the international court in this case, the process of reaching these courts challenging the state for his own rights and fundamental freedoms. European Convention on Human Rights created by the system and was the most developed regional Human Rights system. The Convention‘s system was - the Commission (it is no longer functioning) and Court (ECJ) - creation embodied the legitimacy of human rights against the guarantor and led to a real Human Rights. European Convention on Human Rights was establishing an official only entrants (i.e. - States which have ratified it), this provision is described in Art. 59 of the Convention, which pointed out that the Convention may be signed by the European members of the Council and it has to be ratified. This it should be noted because it is extremely important for the European Union as an international organization, the accession to the Convention system, which can be regarded as exceptional and historic. Legal access the basics - Convention Protocol 14 reformed the system adopted in 2004 and entered into force in 2010 June 1, (after this Protocol was ratified by the Russian Federation in Interlaken Conference in 2010 February 18) which discussed the European Union‘s accession to the European Convention on Human Rights system and create the legal basis for accession.

It should be noted that the Human Rights of legal regulation and protection mechanisms, the initiative belonged to the United Nations. Unfortunately, the European Community can not use the name of the originator, the Community, especially at the beginning of its existence, tried to avoid human rights issues regulation. It was the position that the Community as a system based on strictly economic interests, protection of human rights is completely foreign to them. The original Community Treaties focused on trade and other economic issues, and the issues related to the protection of human rights attributed exclusively to the European Court of Human Rights (established by the Council of Europe) competence. Protection of Human Rights issues, by the Community, had been picked up only in later stages of its development. When the deepening integration and more and more frequent conflict situations between Member States and the Community have shown that the legal system in the human rights doctrine in some Member States could lead to constitutional problems. And while Human Rights are now recognized by the European Union, the legal basis still had a lot of control on human rights issues.

From the middle of XX century Human Rights development of the activity was very intense: 1950 European Convention on Human Rights (later called - the ECHR or the Convention) a successful activity was proved by the fact that since its entry into force in 1953, the number of participants has increased more than three times and now covers almost the entire European continent. Human rights are highly developed, making a huge impact on both the Member States and the international legal framework, leaving the possibility of the European Communities, the legal system - seeking purely economic goals - to move away and continue to ignore the importance of Human Rights. Although the treaties establishing the European Communities is neither direct, neither more open clues for Human Rights, it does not mean that at the time of the creation of the Community, these values ​​were not major proponents of a united Europe.

Development of Human Rights in The European Union

1952 The European Defence Community Treaty (unfortunately dormant) has the obligation to respect political freedoms and Fundamental Rights of individuals, but in 1953 the European Political Community Treaty, the project was to take the material provisions of the ECHR - Convention, Chapter I and I-protocol treat it as the most important part of EC law - and provide adequate competence of the European court of Justice. It can be argued that the main reason for long alienated formal recognition of the Human Rights treaties of the European Communities constitutional limitation has been the economic integration - has long been the focus to the economy, rather than to individuals. So initially, the European Court of Justice (later called - the ECJ or the Court) when confronted with Human Rights and Freedoms, which were guaranteed by the Member States generally constitutional questions, raised issues by the national courts in the application of European Community law and stated that could not say whether the measures adopted by the Community institutions in accordance with Human Rights and Freedoms. 1959 case Stork vs (ESCS) High Authority (1/58) has decided to take up the High Authority (European Coal and Steel Community authorities), the company received a complaint against the decision, which was not competent to examine whether the decision violated the German constitution set of common principles.

In essence, recognizing the general principles of the existence and importance, the Court did not agree that they can be relied upon to challenge the legality of acts of the Community institutions - avoiding direct answer to the national court queries whether specific Community legislation for compliance with human rights, the Court restricted themselves to general statements, such as "Community right can not be repealed in accordance with national law, even constitutional„. This court's position, first raised the economic operators, which have been in the jurisdiction of EC, frustration. The situation is particularly complicated when part of a national government areas of competence (which has traditionally been limited by constitutional provisions to ensure the protection of the interests of citizens) after the transfer to, community competence, lost no similar restrictions, individuals have lost the right to rely on their own country's Constitution, without a similar level of protection in the Community and this caused a „lack of justice".

The problem is further exacerbated when the Court began its case-law of the EC said the rule of law. Member States feared that the law encroached on fundamental values ​​defended their national legislation, and most of these values ​​will not provide adequate protection. Moreover, expansion of Community competence into getting a new area (environmental protection, consumer protection, culture, health, education), and the increase in human rights violations possible. It has become clear that the EU's legal system without human rights doctrine can lead to constitutional problems. To avoid this and to ensure further integration of the EC, the ECJ has decided to expand the concept of human rights issues. Begin to have been made in 1969 case in which the plaintiff from Germany, Stauder v. Ulm (Case 29/69), wanted by the social welfare program at a discount to the butter, contrary to established policy that requires a coupon, showing his name and address. According to the applicant, the requirement to disclose the identity of humiliation and a violation of his human, fundamental rights. The ECJ found that the coupon does not contain butter recipient's name and stated that "the disputed provision is without prejudice to the rights of man, which is the part of the general principles and defended recognized that fundamental human rights are the right to a general principle. However, Stauder v. Ulm, the ECJ still diligently avoided any reference to any international instrument for the protection of fundamental rights.

A little later, 1970 Internationale Handelgesellschaft (Case 11-70) deciding the case, the Court also noted that "the protection of fundamental rights, being inspired by all the common constitutional traditions of the Member States must ensure the structure and objectives of the framework. In this case, where the preliminary findings of the Court requested the German national court, the applicant has been trading company, acquired the license for the export of raw corn and submitted the required deposit. This deposit was partially confiscated, because the company did not manage all of the quantities exported during the license term. Applicant sought the annulment of such a regulation, as contrary to the principles of the German constitution, freedom of economic activity, proportionality. Unfortunately, the Court ruled that restrictions proportionate to the aim pursued. ECJ defended the basic human rights, the majority deduced from the constitutional traditions of the Member States, and only later the source indicated and international law. In 1974 considering a case in which the applicant - a small coal trading company Nold (Case 4-73) - challenged the Commission's decision to legalize the wholesale coal trade only with plenty, and according to the applicant, the infringed his rights and led to its bankruptcy. The court, in assessing the the applicant's argument that the Commission's decision violates his right to property and the right to freely engage in business, examined national constitutions and the ECHR granted the rights and guarantees recognized that such rights are not absolute - it depends on the values ​​advocated social function, and can therefore be restricted in the name of public interest. Similarly, the law has allowed some limitations on these rights, which can be justified by the common objectives, provided that without prejudice to the rights of the essence ... and purely commercial purposes beyond their scope. "According to the Court, the contested act did not violate the plaintiff's rights, the loss is not due to that act, and economic changes in the coal industry, to which the plaintiff had to adapt. Among other things, Nold case, the Court has already held that international treaties on human rights could indicate the direction to be followed by Community law.

Case-law, protection of human rights has considerably strengthened the political institutions of the EC Court's approval of the selected direction: 1977 04 05 was submitted to the European Parliament, Council and Commission declaration, the preamble clearly states that EC law is not only the primary and secondary written law, but also the general principles of law, which is based on Member States' constitutional right. The primary importance of this declaration shall defend the rights derived from the ECHR. Later, a similar declaration is made in 1986 and 1989, which encouraged the Court to rely on at the Convention in general and its specific rules. First the document officially recognized by the European Human Rights Convention (even though he did it only in its preamble) has entered into force in 1987, the Single European Act. The preamble to the measure, Member States expressed their commitment to "promote democracy, based on the fundamental rights as recognized by the Member States' constitutions and laws, Europosžmogaus Rights and Fundamental Freedoms and the European Social Charter, and it is - freedom, equality and social justice." In practical terms, the Single European Act led to an interest in the ECHR, the ECJ used as a direct source of law. In 1992 The Treaty of Maastricht was taken even one step further: F paragraph 2 states: "The Union shall respect fundamental rights, as guaranteed by the ECHR, signed in Rome, 1950 and which arises from the Member States to the constitutional traditions common to the general principles of Community law." While this agreement on human rights recognized as a general principle of Union law, but in practice was not yet ready to establish a clear summary of these rights treaties level. Meanwhile, in 1999 Amsterdam Treaty in respect of human rights identified as one of the principles put forward by the Union and the Member States, the political responsibility for the violation of this principle. Under this agreement the Council of Ministers the right to take action to combat discrimination based on sex, race, religion or belief, disability, age or sexual orientation as a separate item to combat racism and xenophobia. In 2001 December Nice European Council meeting adopted the European Union's Charter of Fundamental Rights, which, according to a list of specific human rights. A review of Human Rights developments in EU law, it should be noted that what now seems clear is the slow evolution from 1957 to 1997 result. It follows that the EU - as an economic goal in partnership - their initial general tried not to touch the field of human rights. That is why human rights in Community law got a practical way - through the decisions of the ECJ, the early legal abstractions, but as time passed, more clearly developed specific human rights, naming them as the Common EU law.

The EU’s accession to the ECHR

The ECHR offers protection of fundamental civil and political rights and provides for an enforcement machinery through the European Court of Human Rights, which is an organ of the Council of Europe and based in Strasbourg. Individuals who deem their rights have been violated in one country can bring their case to the Strasbourg court after exhaustion of domestic remedies. The EU has developed a separate legal order, with the Court of Justice of the European Union in Luxembourg as its highest court.  Whereas all EU member states are also parties to the ECHR, the EU itself is currently not. Even though the EU is founded on the respect for fundamental rights, the observance of which is ensured by the Court of Justice of the European Union, the ECHR and its judicial mechanism do not formally apply to EU acts. On the other hand, all member states of the EU, as parties to the Convention, have an obligation to respect the ECHR even when they are applying or implementing EU law. This divergence may be rectified by the EU, as such, becoming a party to the Convention. The EU's accession will strengthen therefore the protection of human rights in Europe, by submitting the EU’s legal system to independent external control. It will also close gaps in legal protection by giving European citizens the same protection vis-à-vis acts of the EU as they presently enjoy from member states. [1] 

Article 6 paragraph 2, section 1 TEU and further process

Under the precise rule of the Court in opinion 2/94 it needed a Treaty correction for the Community to accede to the ECHR as an outcome of the absence of an explicit competence. This correction was forwarded and a specific provision was enetered in the Treaty establishing the Constitution for Europe, a Treaty was never enacted. However, the matter of accession was adhered within the EU agenda and subsequently was included in the Treaty of Lisbon which finally came into force on 1st of December 2009. According to the new article 6.2 of TEU: "The Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms"

The way that this provision is formulated describes the Union’s accession not simply as a wish or a general idea, but more as a duty. The term "shall" exactly reflects that perception in the sense of containing an obligation within a future time instead of the term "may" that gives more freedom in acting. Generally, provisions are technically enounced in either an obligatory or a more permissive mode within the EU legal system, this is usually expressed with the terms "shall" and "may" respectively. Article 8 TEU could be an example for both categories paragraph 1 dictates that the Union shall develop good relations with neighbouring countries, while paragraph 2 states that the Union may conclude specific agreements with those countries.Thus, the terminology used in article 6.2 of TUE, section 2 underlines the importance on this issue. The above mentioned provision should not be examined independently of article 2 TEU. This provision, outcome of the Lisbon policy as well, illustrates the democratic qualities and values of the Union that form part of the common EU identity and inserts a general background for the protection of fundamental rights within the Union to be based on and therefore materialised. This basis has an explicit presence within the autonomous EU legal order and all the more in the forefront of the Treaty and takes a symbolic approach in providing the Union with the obligation to accede to ECHR. A major matter that the Lisbon Treaty establishes is the legal personality of the Union. This article (6.2 TUE) comes to put an end to many relevant discussions especially with reference to who shall accede to the ECHR, the EC or the EU. From the adoptation of the Treaty of Rome, the Member States intented to attribute legal personality to the Community to act in international scene by concluding international agreements. Under the principle of conferred powers. The situation became far more complex after the creation of the European Union, a new entity that was based in the „three pillar system".

The two new pillars (Common Foreign and Security Policy, Justice and Home Affairs) that were introduced in the Maastricht Treaty, along with the existing European Community, substantially changed the institutional framework around the Community. Therefore an issue arose regarding the legal personality of the Union itself, an open issue until the Lisbon Treaty time. Under the Lisbon framework the three pillar system is abolished and is replaced with a merged legal personality for the Union which leads to the ability of the latter to participate in international agreements.

For the completion of the accession, an international agreement in the form of an accession treaty need to be concluded according to the parameters set in article 218

TFEU. Under the new architecture of the Union’s external relations action, this provision entails all procedural matters for negotiating and concluding an international agreement. As seen throughout article 218 TFEU, mainly the Council determines the organization of the Union’s negotiation process, while receiving recommendations from the Commission or the High Representative of the Union for Foreign Affairs and Security Policy regarding topics of the ex-second pillar and is finally responsible for concluding the agreement. In the case of the EU accession, the consent of the European Parliament is required for the conclusion of the agreement, while the Council’s final decision on concluding the EU accession agreement shall be taken unanimously and ratified by the member states in conformance with their constitutional requirements. An issue that may raise problems regarding the conclusion of an agreement for EU accession to ECHR is that deriving from article 218 paragraph 11 TFEU. According to that provision, any of the formal EU institutions involved in the process (Council, Commission, European Parliament) as well as every member state may seek an opinion from the ECJ as to whether the agreement is compatible with the Treaties. The term "compatibility" refers to both the procedural provisions of the Treaties and provisions of substantial nature. Both situations do not really affect a possible accession since the reasons that made the accession incompatible with the Treaties have been already espressed and surpassed through the Lisbon correction. What may affect the conclusion of an accession agreement regarding "compatibility" is whether it may also include review of specific clauses of the agreement between the EU and the ECHR as the agreement will still be provided under the concepts of article 218 TFUE. In a positive response, - re-negotiations will become necessary if the Court finds inconsistency between clauses of the drafted agreement Treaties. This process may end to be highly time consuming especially if the initial negotiations have reached final stages.

From a more practical approach the European Commission and the Council of Europe started official negotiations on the 7 of July 2010 with Viviane Reding (Vice-President of the Commission and Thorbjørn Jagland, Secretary General of the Council of Europe representing the two bodies).

The accession process has already faced some difficulties on both sides. For example Russia held up the beginning of negotiations by being uncooperative regarding Protocol 14 to the ECHR, which allowed for accession of the EU. Now that negotiations have been transferred, Russia feels that it will have to consent to any corrections made to the Project Agreement, if it does not it will cancel its support for accession.This ‘rebooting’ of negotiations allows for representatives from all of the Council of Europe states to also propose corrections which may reveal more reservations on that side.

The Court of Justice has the task of ensuring that in the interpretation and application of the Treaties, the law is observed and it alone has jurisdiction … to declare if appropriate that an act of the Union is invalid’ [2] Â  The Court claims that giving the ECtHR the power to invalidate acts of the EU must avoided where possible. This will be potentially prove to be a dealbreaker in the negotiations. From the very start of the negotiations it has been clear that that autonomy, which is jealously policed by the Court of Justice of the European Union, would be a major issue for the negotiators. Thus it seems the Court of Justice may voice strong opposition where it feels the mechanisms to be put in place will challenge its authority over Union law. The other institutions of the EU shall have to take into account the views of the CJEU as it is very likely that at least one Member State will ask for a CJEU opinion as to the accession agreements compatibility with the Treaties. The CJEU has already shown that it may be uncooperative where it feels threatened. There will almost undoubtedly be some effect on the EU’s autonomy as joining the ECHR has been assessed as resulting in European States no longer embody insular, autonomous, self-defined legal systems.The EU will need the CJEU as a contributor because if it does declare the accession agreement incompatible with the Treaties, then negotiations will have to begin again. Given the already evident reluctance of some of the parties, this would be an undesirable delay. If any kind of incompatibility were found the Union would be forced to revise the Treaties before concluding the agreement; it is unlikely that the EU institutions would take such a risk, given the political importance..Thus the views and input of the CJEU will likely be a significant consideration for the negotiators.

Given the already evident dissatisfaction with accession, obtaining consent from all the Member States and the Council of Europe states is likely to be a drawn out and convoluted process. The CJEU has also shown it is weary of the effects of accession and will be unlikely to be cooperative if it feels its position is threatened. Thus throughout the negotiations there will be many different considerations present which means the current negotiations are relatively unlikely to mirror the final agreement

Conclusions

Europe is able to boast one of the most extensive judicial systems of rights protection in the world, and the accession of the EU to the ECHR will certainly reinforce this. However, the character of the EU’s internal negotiations highlights some of the problems with the EU’s decision making process – an insistence on secrecy and an emphasis on ‘strategic priorities’ above the consideration of the rights of individuals.