Every December, ministers meet during the Agriculture and Fisheries Council to set annual fishing limits; limits which organisations including ClientEarth say are pushing vulnerable species such as cod to the verge of collapse. The environmental law charity also warns that the limits might violate the European convention on human rights by endangering the livelihoods and traditions of local communities who depend on those fish stocks.
To fight against these limits set at the European Union level, ClientEarth is suing national authorities via a somewhat unexpected route – through the domestic courts in Ireland and France. “We have to be quite creative in finding ways to get access to the courts in order to hold the EU institutions accountable,” Adam Weiss, ClientEarth’s Brussels-based programme director for Europe tells The Parliament.
That is about to change. If all goes according to plan, in a few years, it will be possible to directly sue the EU over everything from its fishing to its migration policies without legal hoop-jumping. “It will be possible [to have] individuals, [let’s say] ‘Bob Jones’, versus the European Union before the European court of human rights; or NGOs doing the same,” says Weiss.
That’s because earlier this year both European Commission president, Ursula von der Leyen, and European Council president, Charles Michel, pledged that the EU would double down on longstanding efforts to join the European convention on human rights, which entered in to force 70 years ago. Until now, only Member States have ratified it, but due to an amendment to the 2009 Treaty of Lisbon, the EU’s accession to the convention is now a legal obligation.
This is a significant advance for the protection of human rights in Europe
After a first bid to join stalled over technicalities, efforts were dormant for years. In 2020, the 46 Council of Europe Member States and the EU’s executive body resumed the formal closed-door negotiations. The human rights treaty has had a significant impact on fundamental rights across the continent by guaranteeing basic civil and political rights such as freedom of speech, freedom of religion, and the right to free and fair elections.
Accession means that, in future, it will become possible to sue EU institutions over human rights violations before the European court of human rights in Strasbourg. It functions somewhat as an appeals court, one that individuals, companies and organisations can turn to, having gone through their highest national courts.
At the moment, the Strasbourg court only ‘accepts’ lawsuits touching on human rights violations tied to actions taken by one of the 46 states that have joined the convention, which includes all 27 EU Member States. It has no authority to decide on cases brought against the EU because the EU hasn’t signed the court’s founding treaty.
“We have an accountability gap because we cannot externally review the actions of the EU agencies,” says Başak Çalı, a professor of international law at the Hertie School in Berlin. “If the accession agreement goes through, any conduct that can be directly attributed to the EU, including its agencies, and interferes with human rights protected under the European convention on human rights may become a human rights case against the EU before the European court of human rights.”
A spokesperson for the European Commission says the EU’s joining the convention would ensure “the EU becomes subject to review by the European court of human rights just like its 27 Member States”, adding: “Within the EU legal order, compliance with fundamental rights is, however, already ensured through the existing legal proceedings which allow any natural person [meaning an individual human being] or legal person [meaning an individual or a company] to challenge any alleged breach of EU fundamental rights by EU institutions, agencies or bodies.”
The road ahead is still long. If the Commission and the 46 Council of Europe states can agree on a new accession text, the document will need to be adopted by the Committee of Ministers, the Council of Europe’s decision-making body; win the approval of the Luxembourg court and the European Parliament, and be ratified by all the national parliaments of the EU’s 27 Member States.
Experts expect more lawsuits to be brought over environmental questions and the EU’s migration policies once this process has been completed. But no one should expect instant results. “If we have a burning issue today, how that will get to the Strasbourg court if everything is completed?” questions Çalı. “It will take quite a bit of time. There are still going to be a lot of technical hurdles.”
Accession is also likely to open a new pathway for tech giants such as Google and Amazon to contest enforcement of EU rules. The EU recently adopted landmark regulations aimed at creating a safer internet and promoting competition in the digital economy, and EU civil servants rather than national authorities will police big tech to ensure they adhere to the new rules. This means that, in a post-accession world, tech giants could say they suffered human rights violations due to the actions of EU agencies.
“For example, digital rights, online platform regulation, online safety – that area, to the extent that the EU itself retains enforcement powers and takes decisions on imposing fines and so forth; that could be subjected after accession to review by the European court of human rights,” says Robert Spano, former president of the Strasbourg court.
For instance, a tech giant slapped with a hefty fine because it violated EU online safety rules could challenge this decision before the Luxembourg-based European court of justice. If the tech giant is unhappy with the Luxembourg court’s decision, the highest court in EU law, it could then turn to the Strasbourg court, Europe’s highest court on human rights issues, with the argument that its right to a fair trial under the convention was violated. “It may be counterintuitive, but European human rights law protects legal persons and companies as well,” explains Spano, now a London-based partner at law firm Gibson & Dunn.
Legal experts say the legacy of the European convention on human rights is difficult to overstate – from improving the criminal justice system and detention conditions to enshrining the right to a fair trial, protecting individuals from press intrusion, outlawing corporal punishment and improving the rights of LGBTQI+ people.
“It has been incredibly impactful in how we protect human rights in Europe,” Çalı says. “Its impact is not just that people have won their cases, but a huge amount of domestic law, policy and legislation has changed over time in order to better protect human rights back home.”
Lately, however, its influence appears to have been diminishing. Russia ceased to be party to the convention following its expulsion from the Council of Europe in March 2022, while several politicians in the United Kingdom have expressed a desire for the UK to exit the convention over concerns it limits lawmakers’ ability to take action to curb illegal migration.
We have enough law; we have enough courts
And while the EU’s accession should close a significant accountability gap, it remains to be seen how deep the overall impact will be. Omer Shatz, the Paris-based legal director of front-LEX, a non-profit that challenges EU migration policies through strategic litigation, cautioned realism. “It’s not that they open a new post office in your neighbourhood and now we will get a better service,” he says. “We have enough law; we have enough courts.”
Shatz maintains that the overwhelming majority of cases brought by victims of human rights violations are kicked out by the Strasbourg court on technical grounds at an early stage. As for the “minuscule percentage” of cases that are heard by the court and see the judges siding with victims, the rulings haven’t led to changes in the EU’s migration policies, he says. “Because EU Member States, instead of complying with the ruling of the European court of human rights, design their policies to circumvent these rulings,” he asserts.
“This court doesn’t deter the institutions and states that are subjected to its jurisdiction from doing what they are doing,” he adds. An individual victim might receive €20,000 in damages, Shatz says, “but there is no leverage of the court to change structurally the policies that are at stake, especially in a highly politicised matter such as migration”.
ClientEarth’s Weiss is more optimistic, but cautiously so. “This is a significant advance for the protection of human rights in Europe,” he says, adding that its true impact would only become clear further down the line. “We're going to have to see exactly how the Strasbourg court responds to cases that are brought against the European Union; what standards they apply; and to what extent they treat the EU differently from other countries.”
At this stage, it remains unclear when exactly the EU will join the convention. Tobias Lock, a professor in EU law at Maynooth University in Ireland, is prepared to hazard a guess: “If all the stars align and the court of justice approves the accession agreement, I would say 2025. At the very earliest.”