← The hardest concepts in European Union law
In one breath
The European Convention on Human Rights belongs to the Council of Europe and is enforced by the European Court of Human Rights in Strasbourg, while the Union is a different organisation with its own Court of Justice in Luxembourg. The Treaties require the Union to accede to the Convention, and until it does so the Convention guides Union law without being formally part of it.
The picture
Two passports, two border posts
A traveller may carry two passports from two different clubs of countries. Each has its own border post, its own officers and its own rulebook, and an officer at one border cannot overrule the other. The traveller’s rights at one post are decided by that post. Yet the two clubs overlap in membership, their rules look alike, and an officer at one often glances at how the other would have decided.
The Convention and the Union are like that. The Court of Justice applies Union law, including the Charter, and the European Court of Human Rights applies the Convention. Corresponding Charter rights have the same meaning and scope as the Convention rights, though Union law may give more protection. Member States are individually bound by the Convention, even when they apply Union law, but the Union itself is not a party unless and until it accedes.
Where the picture stops working
Passports can be checked at a glance, but the legal relationship is not a simple overlap. The Union’s Treaties require accession, and the Court of Justice has held that the draft agreement it examined was incompatible with the Treaties, among other reasons because it did not adequately protect the autonomy of Union law. And the Strasbourg court has developed its own approach to Member States who act under Union law, which the picture does not show.
How it really works
- 1Know where the rule comes from. The Convention is a treaty of the Council of Europe. The Union’s relationship to it is set out in Article 6 of the Treaty on European Union and in the Court’s opinions, and Article 52(3) of the Charter links the two instruments.
- 2Separate the courts. The Court of Justice of the European Union sits in Luxembourg and interprets Union law. The European Court of Human Rights sits in Strasbourg and interprets the Convention. Neither is an appeal court from the other.
- 3Separate the parties. The Convention binds the States that ratified it, including all Member States individually. The Union itself is not a party unless and until it accedes, which the Treaties require.
- 4Apply the link. Charter rights that correspond to Convention rights have the same meaning and scope, and Union law may offer wider protection (Article 52(3) of the Charter). The Convention rights also form part of Union law as general principles (Article 6(3)).
- 5Consider the Strasbourg approach. When a Member State acts to comply with its Union obligations, the Strasbourg court has applied a presumption that Union protection is equivalent to the Convention’s, which can be rebutted if protection was manifestly deficient (Bosphorus).
Why people get it wrong
- Assuming that the European Court of Human Rights is an institution of the Union. It belongs to the Council of Europe.
- Treating the two as one system with one appeal. They are separate, and the Court of Justice does not review decisions of the Strasbourg court.
- Thinking that the Union is automatically a party to the Convention. The Treaties require accession, which is a separate step.
- Believing that the Convention is irrelevant to the Union. It guides the interpretation of Charter rights and supplies general principles.
- Missing that Member States remain answerable at Strasbourg for what they do under Union law.
A worked example
The facts are invented
Takeshi, a resident of a Member State, complains that a national authority, applying a Union regulation, has frozen his bank account without giving him a chance to answer the allegations. He has two sets of arguments. In the national court he can invoke the Charter right to be heard and the right to effective judicial protection, which bind the State because it is applying Union law, and the national court can ask the Court of Justice what the regulation means.
If he exhausts national remedies and still loses, he may complain to the European Court of Human Rights against the State, relying on the Convention. That court will consider the State’s responsibility, bearing in mind the presumption of equivalent protection. Each court answers its own question under its own instrument; neither is the other’s appeal court, and the same facts may be examined twice for different purposes.
Try it
A person loses a case about a Union regulation before the Court of Justice. Can they appeal to the European Court of Human Rights as an appeal from that judgment?
Landmark authorities
Read the sources themselves; this list is a starting point.
- Opinion 2/94 (accession to the European Convention), 1996
- Opinion 2/13 (draft accession agreement), 2014
- Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v Ireland, Application no 45036/98, 2005
Where to go next
Case briefs
Dictionary
More hard concepts in European Union law
- General principles of Union law and the Charter of Fundamental Rights (Fundamental rights)
- Free movement of goods (Internal market)
This page is an educational overview. It is not legal advice and not a substitute for the sources: the statute, the rule, the case itself. EU law is made by the Union’s institutions under powers that the Member States have conferred on it in the Treaties, and it is applied by national courts and the Court of Justice together. The national law of each Member State still governs most of private and criminal law. Each page says whether the idea comes from the Treaties, from regulations and directives, or from the Court of Justice’s case law. Each page states the usual formulation of the rule and names landmark decisions; check the primary sources, and the law of your own Member State, before relying on any rule.