EU joining the ECHR New opportunities under two legal systems EQUINET HIGH-LEVEL LEGAL SEMINAR Brussels, 1 – 2 July 2010 Dr. Mario OETHEIMER EU Agency for Fundamental Rights (FRA)

What does the FRA do? Information and data collection and analysis Evidence-based advice to European Union institutions and Member States Co-operation with civil society and awareness-raising What is the FRA’s geographical scope? The FRA only deals with the 27 Member States of the European Union

EU Agency for Fundamental Rights (FRA) Which are the areas the FRA is focusing on in its research? racism, xenophobia and related intolerance discrimination based on sex, race or ethnic origin, religion or belief, disability, age or sexual orientation and against persons belonging to minorities and any combination of these grounds (multiple discrimination); compensation of victims the rights of the child, including the protection of children asylum, immigration and the integration of migrants visa and border control participation of the EU citizens in the Union's democratic functioning information society and, in particular, respect for private life and protection of personal data access to efficient and independent justice

4 What is the e xpected timeline of EU accession to the ECHR? What is the scope of protection of the Charter and the ECHR? What are the implications and possibilities for European citizens to challenge EU decisions? What will be the future relationship between and respective roles of the Court of Justice of the European Union and the European Court of Human Rights? Principal questions

Outline 1.The Lisbon Treaty: A binding Charter of Fundamental Rights 2.The Lisbon Treaty: EU Accession to the ECHR 3. An example of current judicial practice

6 The Lisbon Treaty: A binding Charter of Fundamental Rights

7 A binding Charter The “Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of 7 December 2000, as adopted at Strasbourg, on 12 December 2007, which shall have the same legal value as the Treaties. The Provisions of the Charter shall not extend in any way the competences of the Union as defined in the Treaties. The rights, freedoms and principles in the Charter shall be interpreted in accordance with the general provisions in Title VII of the Charter governing its interpretation and application and with due regard to the explanations referred to in the Charter, that set out the sources of those provisions.” (Art. 6 Para. 1 TEU)

8 A binding Charter The “Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of 7 December 2000, as adopted at Strasbourg, on 12 December 2007, which shall have the same legal value as the Treaties. The Provisions of the Charter shall not extend in any way the competences of the Union as defined in the Treaties. The rights, freedoms and principles in the Charter shall be interpreted in accordance with the general provisions in Title VII of the Charter governing its interpretation and application and with due regard to the explanations referred to in the Charter, that set out the sources of those provisions.” (Art. 6 Para. 1 EU) A binding Charter What does this mean for EU institutions and individuals? -EU institutions as well as the Member States when implementing EU law have the obligation to respect the fundamental rights set out in the EU Charter -Individuals may rely on the EU Charter before the Court of Justice of the European Union

9 A binding Charter The “Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of 7 December 2000, as adopted at Strasbourg, on 12 December 2007, which shall have the same legal value as the Treaties. The Provisions of the Charter shall not extend in any way the competences of the Union as defined in the Treaties. The rights, freedoms and principles in the Charter shall be interpreted in accordance with the general provisions in Title VII of the Charter governing its interpretation and application and with due regard to the explanations referred to in the Charter, that set out the sources of those provisions.” (Art. 6 Para. 1 EU) A binding Charter What does that mean in terms of non- discrimination? -Article 21 of the Charter: “Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited.”

10 The Lisbon Treaty: EU Accession to the ECHR

11 EU Accession to the ECHR  “The Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms. Such accession shall not affect the Union’s competences as defined in the Treaties.” (Art. 6 Para. 2 EU)  Art. 59 Para. 2 ECHR provides for the possibility of EU accession  Cumbersome ratification procedure foreseen in Art. 218 Para. 8 TFEU  Various safeguards to be respected as outlined in Protocol 8 on the accession agreement

12 ECHR accession: State of Play and Way Ahead On 26 May 2010 the Committee of Ministers of the Council of Europe (COE) set up an Informal Group that will conduct the negotiations on the COE side. On 4 June 2010, the Council of the European Union has adopted a negotiation mandate. In parallel, the EP adopted a Resolution on 19 May 2010 in plenary The COE and the EU will start the negotiations on 6 July 2010 negotiator. Once the accession agreement will be finalised, Art. 218 (8) to be applied and all 47 COE Member States need to ratify the accession agreement as well.

13 ECHR accession 2) accession to the ECHR ECHR  “The Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms. Such accession shall not affect the Union’s competences as defined in the Treaties.” (Art. 6 Para. 2 EU) What does that mean in practice for the relationship between the CJEU and the ECtHR? -CJEU’s decision reviewable by the ECtHR -CJEU will align its case law with the relevant ECtHR case law (where the EU was a party to previous proceedings in the same matter)

14 ECHR accession 2) accession to the ECHR ECHR  “The Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms. Such accession shall not affect the Union’s competences as defined in the Treaties.” (Art. 6 Para. 2 EU) What does that mean in practice for an individual? Individuals will be able to bring a complaint about a violation of their ECHR rights by the EU before the ECtHR provided they exhaust domestic remedies

15 Interaction between the two regional systems: a recent example from the ECtHR jurisprudence concerning discrimination Schalk and Kopf v. Austria (24 June 2010): recent evidence of a concrete impact of the binding Charter on the ECtHR’s jurisprudence in the area of non-discrimination Current Judicial Practice

16 Handbook on European case-law on non- discrimination: need for the inter-institutional collaboration between the EU and CoE

17 Any questions or comments?