EU Accession to the ECHR

The accession of the European Union to the European Convention on Human Rights (ECHR) is a long-standing objective mandated by primary EU law. Article 6(2) of the Treaty on European Union (TEU) provides that “the Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms.” This obligation, introduced by the Treaty of Lisbon in 2009, aims to create a coherent European human rights architecture by subjecting the EU’s legal acts to external judicial review by the European Court of Human Rights (ECtHR).

Legal Basis and Obligation

Article 6(2) TEU requires accession, and Protocol No 8 to the Lisbon Treaty provides parameters for the accession agreement. The protocol stipulates that accession shall not affect the Union’s competences or the powers of its institutions, and that it must preserve the specific characteristics of EU law. This creates a tension inherent in the project: the EU must submit to external human rights oversight without undermining the autonomy of its legal order.

Protocol 14 ECHR

Protocol No 14 to the ECHR, which entered into force on 1 June 2010, amended Article 59 of the Convention to permit the EU to accede. The new paragraph 2 of Article 59 provides: “The European Union may accede to this Convention.” This removed the legal obstacle to accession at the level of the Convention system, which previously limited participation to member states of the Council of Europe.

The Accession Agreement and Opinion 2/13

Following extensive negotiations, the draft accession agreement was finalised in April 2013. The agreement sought to balance the EU’s institutional specificities with the integrity of the ECHR system through mechanisms including:

• A co-respondent mechanism allowing the EU or its Member States to become parties to proceedings;
• Prior involvement of the Court of Justice of the EU (CJEU) to rule on the compatibility of EU law with ECHR rights before the ECtHR determines a case;
• Preservation of the principle of mutual trust between Member States.

The Commission requested the CJEU’s opinion on the compatibility of the draft agreement with the EU Treaties. In Opinion 2/13 of 18 December 2014, the Court delivered a resounding rejection, holding that the draft accession agreement was incompatible with EU law on multiple grounds.

The Court’s Objections in Opinion 2/13

The CJEU identified several fundamental problems. First, the agreement would adversely affect the autonomy of EU law by subjecting the EU to an external judicial mechanism without adequately safeguarding the preliminary ruling procedure. Second, the co-respondent mechanism gave the ECtHR the power to determine the allocation of responsibility between the EU and its Member States, a matter the Court considered exclusive to EU law.

Third, the Court objected that the agreement did not exclude from ECtHR review matters falling within the Common Foreign and Security Policy (CFSP), over which the CJEU has limited jurisdiction. Fourth, the protocol on prior involvement of the CJEU was insufficient to guarantee that the CJEU would rule on the relevant EU law issue before the ECtHR did.

Fifth — and most significantly — the Court held that the agreement failed to safeguard the principle of mutual trust between Member States, which is fundamental to the EU’s area of freedom, security, and justice. The Court reasoned that requiring Member States to verify compliance with ECHR rights when transferring individuals under EU law would undermine the automatic recognition that underpins the EU’s internal cooperation mechanisms.

The Co-Respondent Mechanism

The draft agreement provided that where an application to the ECtHR concerned a provision of EU law, both the EU and its Member States could be co-respondents. The CJEU found this mechanism problematic because it would enable the ECtHR to assess the rules governing the division of competences between the EU and its Member States — an area the CJEU considered within the exclusive interpretive authority of the EU legal order.

Current Status

Since Opinion 2/13, accession negotiations have effectively stalled. The Commission repeatedly stated its commitment to resolving the incompatibilities, and in 2020 it resumed discussions with the Council of Europe. A revised draft accession agreement was circulated in 2023, but no final text has been agreed. The CJEU has not rendered a new opinion.

The political obstacles are considerable. Several Member States view accession as undermining national constitutional protections, while others argue that the EU’s Charter of Fundamental Rights already provides equivalent protection. The Council of Europe continues to press for accession, but progress remains slow.

Significance

Accession would subject the EU’s legal acts to external human rights scrutiny, filling a gap in the current system where the CJEU is the final arbiter of EU fundamental rights standards. It would create a mechanism for individuals to bring complaints against the EU directly before the ECtHR after exhausting domestic remedies. Until accession is achieved, the EU remains a sui generis entity in the European human rights landscape — bound by the Charter internally but not subject to the external control that applies to all 46 member states of the Council of Europe.