DOES THE EUROPEAN COMMON AREA OF HUMAN RIGHTS AND FREEDOMS REALY EXIST?

Abstract

Europe has a complex system of fundamental rights protection. It is a truly “crowded house”.
The main purpose of fundamental rights is not to foster harmonisation or uniformity but to
empower individuals, to give them more liberty and to protect them from the state authorities.
The EU Court of justice has decided that the EU accession to the ECHR is not in accordance
with the EU law. The decision was published on 18 December 2014 in Luxemburg. In this
decision, the Court, despite the conclusion that the problem with the lack of legal grounds for
the EU accession to the ECHR has been overcome with the Lisbon Treaty, says that the EU
cannot be considered as a state, which means that this accession should take into
consideration the specifics of the Union, which is strictly demanded from the conditions under
which the accession is subject of negotiations.
By explaining this situation, the Court, in fact, says that as a result of the accession, the
ECHR, as any other international agreement signed by the EU, will become compulsory for
the EU institutions, as well as for its member states, and therefore it will be one integral part
of the EU law. The paper will analyze the current issues related with the negative opinion
issued by the ECJ concerning the EU accession to the ECHR and the recent debates between
the EU Commission and the Council of Europe.
The debate on the role of the ECHR in EU law and on the possible accession of the EU to the
Convention has actually intensified throughout the EU integration process. The EU and its
institutions will be subject to the control mechanisms foreseen in the ECHR, and particularly
of the decisions of the ECtHR. The Court further underlines that it is necessary for the
concept of external control to define that, on one hand, the decisions of the ECtHR based on
the ECHR will be compulsory for the EU, and its institutions, and, on the other hand, to
determine that the decisions of the ECJ related with the rights recognized with the ECHR will
not be compulsory for the ECtHR.
The paper will draw attention to three major challenges regarding the functioning of the
human rights protection systems in Europe, namely: 1.The latest developments related to the
ECHR accession to the EU and the meaning of the negative opinion of the ECJ1 from 2014, 2.
Ongoing conflicts between the work of the ECJ and Strasbourg Court and 3. Existing
obstacles occurred on the way to creating a quality European common area of human rights
and freedoms as European legal and human heritage. The purpose of the EU’s accession to
the ECHR is to contribute to the creation of a single (common) European legal space
achieving a coherent framework of human rights protection throughout Europe.
This paper will argue the main reasons why the EU accession should be kept on the agenda.
The current status quo is not satisfactory and therefore no adequate alternative to EU
accession because firstly, as regards the procedure before the ECtHR, the current picture is
still a distorted one, not reflecting the proper structure of the EU, with Member States having
to face alone the implications of EU law under the Convention, secondly, in terms of the
substance of fundamental rights, the status quo does not seem capable of ensuring a stable
level of protection and legal certainty in the long term, and last but not least, removing the
legal obligation on the EU to accede to the ECHR would undermine the very idea of a
collective and common understanding of the fundamental rights. This, in turn, could initiate a
process leading to the current European architecture of fundamental rights protection being
unravelled altogether. Human rights standards should not be seen as obstacles to upholding
EU legal doctrines such as interstate trust and primacy of EU law as Opinion 2/13 seemed to
suggest. Legal doctrines should be considered instrumental. Instrumental to achieving a Union
of shared values. Respect the fundamental rights is considered as a top value.