Court to rule on EU ratification of Convention on Human Rights

Date: 02/11/1995

By Ole Ryborg

THE European Court of Justice will be asked next week to rule on whether the European Union as a whole should ratify the European Convention on Human Rights.

Lawyers representing ten of the EU's 15 member states, the Commission, Parliament and Council of Ministers will attend a hearing in Luxembourg on Tuesday (7 November) to argue their case.

At stake are some of the highest principles in European law. But before the Court can answer the basic question, it must first tackle a host of other issues concerning both the interpretation of EU law and the EU's influence on other bodies such as the Strasbourg-based Council of Europe.

It is still uncertain whether the Luxembourg Court has the right to give its opinion in this matter at all. Until now, the Court has only given its view on ratification after EU ministers have reached an agreement with a third party. In this case, there is no such agreement and some countries, such as the UK, therefore argue the Court should refuse to give an opinion.

One of the few issues on which all of the intervening parties agree is that the only possible legal base for ratification of the convention by the Union as a whole is Article 235, an article which requires unanimity in the Council of Ministers. This is the main reason why the issue has remained unresolved since the Commission first proposed ratification in a memorandum in April 1979.

Since then, the question of the relationship between EU law and human rights has been raised at Intergovernmental Conferences (IGCs) in 1985 and 1991, but remains unresolved. One key reason why the Court is being asked for its opinion now is that the question of human rights is due to be raised at next year's IGC.

Today, the only direct mention of human rights in EU laws is Article F of the Maastricht Treaty, supplemented by the rights of European citizenship. EU countries have been reluctant to go beyond that. One reason, given by the UK, is that EU law is binding, while signatories of the convention are not obliged to follow all decisions made by the Court of Human Rights.

The fact that the EU could not ratify the convention without changing both the convention itself and its protocols presents another complication. Proposals for such changes are pending, but would be subject to agreement by all members of the Council of Europe.

Among those favouring ratification by the EU as a whole, Austria states that this would secure a joint interpretation of the human rights convention among EU countries that does not exist today.