The European Union and the European Convention on Human Rights: Accession, Relationship, and Institutional Boundaries

The European Union and the European Convention on Human Rights: Accession, Relationship, and Institutional Boundaries

1. Introduction

The protection of human rights in Europe is built around two closely connected but legally distinct systems. The first is the human-rights framework of the European Union, founded on the EU Treaties, the Charter of Fundamental Rights and the general principles of EU law. The second is the system established by the European Convention on Human Rights (ECHR), an international treaty supervised by the European Court of Human Rights (ECtHR) in Strasbourg.

Although the two systems share fundamental values and frequently protect the same rights, they do not belong to the same institutional structure. The European Union is a supranational legal and political organisation with its own institutions, competences and judicial system. The Council of Europe is a separate international organisation, established in 1949, whose principal purpose includes protecting human rights, democracy and the rule of law. The European Court of Human Rights is an institution of the Council of Europe, not an EU court.

All 27 EU Member States are parties to the European Convention on Human Rights. The European Union itself, however, has not yet become a party. This distinction creates an institutional gap: Member States can be held internationally responsible before the Strasbourg Court for violations of the Convention, but the European Union cannot presently be sued directly before that Court as a contracting party.

The Lisbon Treaty attempted to address this gap by establishing a legal obligation for the EU to accede to the Convention. Article 6(2) of the Treaty on European Union provides that the Union shall accede to the ECHR, while also specifying that accession must not affect the competences of the Union as defined in the Treaties.

The accession process has nevertheless encountered significant constitutional obstacles. In Opinion 2/13 of 18 December 2014, the Court of Justice of the European Union (CJEU) concluded that the draft accession agreement negotiated in 2013 was incompatible with the EU Treaties. The objections concerned, among other matters, the autonomy of EU law, the relationship between the two European courts, the allocation of responsibility between the EU and its Member States, and the special characteristics of the EU’s judicial and institutional systems.

Negotiations subsequently resumed, producing a revised draft agreement in 2023. The revised text addressed the objections identified in Opinion 2/13, although questions remained concerning the EU’s Common Foreign and Security Policy. In November 2025, the European Commission requested a further opinion from the CJEU on the compatibility of the revised agreement with the Treaties. As of November 2026, accession has not been completed.

Understanding this process requires examining both the existing relationship between EU law and the Convention and the constitutional questions that must be resolved before the Union can become a contracting party.

2. The European Convention on Human Rights and the Council of Europe

The European Convention on Human Rights was adopted in 1950 under the institutional framework of the Council of Europe. It entered into force in 1953 and established an international system for protecting civil and political rights and fundamental freedoms.

The Convention protects rights including:

• The right to life.
• The prohibition of torture and inhuman or degrading treatment.
• The prohibition of slavery and forced labour.
• The right to liberty and security.
• The right to a fair trial.
• The principle of legality in criminal law.
• The right to respect for private and family life.
• Freedom of thought, conscience and religion.
• Freedom of expression.
• Freedom of assembly and association.
• The right to an effective remedy.
• The prohibition of discrimination in the enjoyment of Convention rights.

The Convention has been supplemented by protocols that develop additional protections, including the protection of property, the right to education, free elections, abolition of the death penalty and procedural guarantees in criminal matters.

Its supervisory institution is the European Court of Human Rights, established in Strasbourg. Individuals, groups and contracting states may bring applications alleging violations of the Convention, subject to the admissibility requirements. Individual applications are particularly important because they allow persons who have exhausted available domestic remedies to challenge the conduct of a state before an international judicial body.

The ECtHR determines whether a contracting state has complied with its Convention obligations. Its judgments are binding on the respondent state under Article 46 of the Convention. The Committee of Ministers of the Council of Europe supervises the execution of final judgments.

The Council of Europe must not be confused with the European Union. They have different membership structures, legal foundations, institutions and functions. The Council of Europe is not an EU institution, and the European Court of Human Rights is not part of the CJEU judicial system.

This distinction is fundamental to understanding accession. The EU is seeking to become a contracting party to an international human-rights treaty administered by an organisation of which it is not currently a member. Its accession therefore requires a carefully designed legal arrangement that accommodates the EU’s status as a supranational organisation.

Official information is available through the Council of Europe’s explanation of EU accession to the ECHR.

3. The EU’s obligation to accede under Article 6(2) TEU

Before the Lisbon Treaty entered into force on 1 December 2009, the European Union lacked an express Treaty provision requiring it to become a party to the ECHR.

The protection of fundamental rights had nevertheless developed substantially through the case law of the CJEU. The Court recognised fundamental rights as general principles of EU law and drew inspiration from the constitutional traditions common to the Member States and international human-rights instruments, particularly the ECHR.

The adoption of the Charter of Fundamental Rights and its subsequent elevation to the same legal value as the Treaties strengthened this internal system. However, the existence of an EU fundamental-rights framework did not resolve the question of the Union’s external accountability under the Convention.

Article 6(2) TEU introduced an express obligation:

“The Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms.”

The provision immediately adds an important qualification: accession must not affect the Union’s competences as defined in the Treaties.

This qualification reflects the constitutional nature of the EU. The Union does not possess unlimited powers to act in every field of public policy. It exercises only the competences conferred upon it by the Member States through the Treaties. Accession to an international human-rights agreement cannot be used to expand those competences or transfer new powers to EU institutions.

Article 6(2) therefore establishes two connected requirements:

First, the Union must become a party to the Convention. This is a Treaty obligation, not merely a political aspiration.

Second, the accession agreement must preserve the constitutional and institutional characteristics of the EU legal order.

The provision must also be read together with Article 6(1) TEU, which gives the Charter of Fundamental Rights the same legal value as the Treaties, and Article 6(3) TEU, which recognises fundamental rights guaranteed by the ECHR and arising from common constitutional traditions as general principles of EU law.

The result is a system in which the Convention already influences EU law, while formal accession remains outstanding.

The relevant Treaty provision can be consulted in the consolidated Treaty on European Union.

4. Protocol No 8: Preserving the specific characteristics of EU law

Article 6(2) TEU does not stand alone. Protocol No 8 relating to Article 6(2) TEU establishes additional conditions governing the accession agreement.

Protocol No 8 is legally significant because it forms an integral part of the EU Treaties. Its provisions are not optional political guidance. They are binding requirements that the accession arrangements must satisfy.

Article 1 requires the agreement to preserve the specific characteristics of the Union and Union law, particularly concerning:

• The Union’s possible participation in the Convention’s supervisory bodies.
• Mechanisms ensuring that proceedings brought by non-EU states and individual applications are correctly directed against the EU, its Member States, or both, as appropriate.

The first requirement concerns institutional participation. Because the EU is not a state, its involvement in the Convention’s supervisory system cannot simply reproduce the arrangements applicable to ordinary contracting states. The agreement must determine how the Union can participate in the relevant institutions without undermining their independence or the Convention’s structure.

The second requirement concerns responsibility. EU law is frequently implemented through national authorities. A violation may arise from an EU institutional act, a national measure implementing EU law, or a combination of the two. The accession arrangements must therefore establish a mechanism capable of identifying the appropriate respondent or respondents.

Article 2 of Protocol No 8 provides that accession must not affect the competences of the Union or the powers of its institutions. It also protects the position of Member States under the Convention, including their existing obligations concerning protocols, derogations under Article 15 ECHR and reservations under Article 57 ECHR.

Article 3 is particularly important. It provides that the accession agreement must not affect Article 344 TFEU.

Article 344 TFEU requires Member States not to submit disputes concerning the interpretation or application of the EU Treaties to methods of settlement other than those provided for in the Treaties. This protects the exclusive and authoritative role of the CJEU in resolving disputes concerning EU law between Member States.

The Convention system cannot become an alternative forum for resolving disputes that belong within the EU judicial system.

The Protocol therefore expresses a constitutional balance: the EU must accept external human-rights supervision, but accession cannot transform the Convention system into a general appellate jurisdiction over EU law.

The full text is available in Protocol No 8 to the EU Treaties.

5. Why accession matters: the accountability gap

The principal argument in favour of accession is that the European Union exercises public authority that directly affects individuals, businesses and organisations.

EU institutions adopt legislation, make administrative decisions, impose sanctions, regulate markets, manage financial programmes and exercise powers in areas such as migration, competition, data protection and external relations.

These activities can interfere with fundamental rights. For example, an EU measure may affect property, privacy, freedom of expression, procedural fairness or the right to an effective remedy.

The EU already has internal judicial mechanisms for reviewing the legality of its acts. Individuals may, depending on the applicable procedural requirements, bring actions before the General Court and appeal to the Court of Justice. National courts may also refer questions of EU law to the CJEU under Article 267 TFEU.

However, these procedures do not create the same form of external international supervision as the ECtHR.

At present, an individual cannot bring an application against the European Union itself before the Strasbourg Court on the basis that an EU institution has violated the Convention. The Union is not a contracting party.

An individual may, however, bring an application against an EU Member State where that state’s conduct falls within the jurisdiction of the Convention and allegedly violates a protected right. This remains possible even where the national conduct is connected with the implementation of EU law.

The distinction can create difficult questions of attribution and responsibility.

Suppose an EU regulation requires national authorities to take a particular measure. An individual affected by that measure may seek remedies before national courts and, where the requirements are satisfied, ultimately bring a case against the Member State before the ECtHR. The Union itself cannot presently be named as a respondent contracting party.

Conversely, where the alleged violation arises directly from an EU institution’s conduct, the applicant cannot bring a Convention application against the Union as such.

Accession would close this institutional gap. It would make the EU directly accountable under the Convention and allow the Strasbourg Court to examine alleged violations attributable to EU institutions within the framework established by the accession agreement.

Accession would not replace the EU’s own fundamental-rights system. Nor would it automatically create a general right to appeal every CJEU judgment to Strasbourg. Its purpose would be to establish an additional level of external supervision, operating alongside the EU’s internal constitutional safeguards.

6. The relationship between the Charter of Fundamental Rights and the ECHR

The European Union’s Charter of Fundamental Rights is the principal written catalogue of rights within EU law. It became legally binding with the entry into force of the Lisbon Treaty.

The Charter and the ECHR overlap substantially, but they are not identical instruments.

The Convention is an international human-rights treaty binding on its contracting parties. The Charter is part of the EU’s primary law and governs the conduct of EU institutions and Member States when they act within the scope of EU law.

Article 52(3) of the Charter establishes a particularly important relationship between the two systems. Where Charter rights correspond to rights guaranteed by the ECHR, their meaning and scope must be the same as those laid down by the Convention, unless EU law provides more extensive protection.

This provision creates a minimum standard of correspondence. It is intended to prevent the Charter from being interpreted in a way that weakens the protection already guaranteed by the Convention.

For example, Article 7 of the Charter protects respect for private and family life, corresponding to Article 8 ECHR. Article 11 of the Charter protects freedom of expression and information, corresponding to Article 10 ECHR. Article 47 of the Charter guarantees the right to an effective remedy and a fair trial, corresponding in relevant respects to Articles 6 and 13 ECHR.

The correspondence does not mean that the two instruments are interchangeable. Their wording, structure, scope and legal operation may differ.

The Charter also contains rights and principles that go beyond the Convention’s traditional catalogue. These include certain social, economic and institutional guarantees associated with the particular character of EU law.

Article 52(3) expressly permits EU law to provide more extensive protection than the Convention.

Article 52(4) further provides that Charter rights resulting from common constitutional traditions of the Member States must be interpreted in harmony with those traditions.

The Charter therefore operates within a broader constitutional environment. It draws on the Convention while retaining its own legal identity as part of EU primary law.

The ECHR also influences EU law through Article 6(3) TEU, which recognises Convention rights as part of the general principles of EU law.

This means that the Convention is legally relevant even though the Union has not formally acceded to it.

The Charter can be consulted through the official EUR-Lex text of the Charter of Fundamental Rights.

7. The CJEU and the ECtHR: two courts, two legal orders

The relationship between the two European courts is central to the accession debate.

The Court of Justice of the European Union interprets and applies EU law. Its jurisdiction derives from the Treaties and includes the interpretation of primary and secondary EU law, judicial review of institutional acts, infringement proceedings and preliminary references from national courts.

The European Court of Human Rights interprets and applies the ECHR. It determines whether contracting states have complied with their international human-rights obligations.

The courts therefore operate under different legal instruments and within different institutional systems.

The CJEU is responsible for maintaining the autonomy, consistency and effectiveness of EU law. The ECtHR is responsible for ensuring compliance with the Convention by its contracting parties.

Their jurisdictions may nevertheless intersect.

A national court may encounter a dispute involving EU legislation and a right protected by the ECHR. It may need to apply the Charter, consider relevant CJEU judgments and take account of Strasbourg case law.

Similarly, the ECtHR may examine national conduct connected with the implementation of EU law.

The existence of overlapping rights does not create a formal hierarchy in which one court automatically supervises the other. The CJEU is not subordinate to the ECtHR in interpreting EU law, and the ECtHR does not function as a general appellate court over the CJEU.

The two courts have instead developed a relationship involving judicial dialogue, mutual reference to case law and efforts to avoid conflicting interpretations.

This relationship is sometimes described as a form of European judicial pluralism. It recognises that two distinct legal orders can protect common rights without merging their institutional structures.

Accession would formalise the EU’s participation in the Convention system, but it would not eliminate the need to preserve the respective judicial functions of the two courts.

8. Opinion 2/13: why the first accession agreement failed

The first major attempt to achieve EU accession resulted in a draft agreement negotiated in 2013 between the European Union and the Council of Europe states.

The European Commission requested an opinion from the CJEU under Article 218(11) TFEU, which permits the Court to examine whether a proposed international agreement is compatible with the EU Treaties.

On 18 December 2014, the Court delivered Opinion 2/13. It concluded that the draft agreement was incompatible with Article 6(2) TEU and Protocol No 8.

The decision was not a rejection of accession as such. The Court did not hold that the EU could never become a party to the ECHR. Rather, it found that the proposed arrangements did not sufficiently protect the constitutional characteristics of the Union.

The judgment identified several interrelated concerns.

8.1 Autonomy of EU law

The Court considered that accession must not undermine the autonomy of the EU legal order.

EU law has its own sources, principles, institutions and judicial procedures. The CJEU must retain the final authority to interpret EU law and determine the validity of EU acts.

The Convention system may examine whether conduct violates human rights, but the ECtHR must not be placed in a position where it determines questions that belong exclusively to the interpretation and application of EU law.

The Court was particularly concerned that the proposed agreement might allow the ECtHR to assess certain questions of EU law without adequate protection for the CJEU’s interpretative authority.

8.2 Mutual trust between Member States

The draft agreement also raised questions about the principle of mutual trust.

EU law requires Member States to recognise and cooperate with one another in several fields, particularly within the area of freedom, security and justice.

For example, the European Arrest Warrant system is based on cooperation between judicial authorities and a general presumption that Member States respect fundamental rights and the rule of law.

Mutual trust is not absolute. National authorities may be required to examine whether fundamental rights are at serious risk in a particular case.

Nevertheless, the CJEU considered that the draft accession arrangements could interfere with the operation of mutual trust by allowing the Convention system to review certain matters without adequately taking account of the specific constitutional structure of EU cooperation.

8.3 The co-respondent mechanism

One of the most technically important issues concerned the proposed co-respondent mechanism.

EU law is frequently implemented through Member States, while EU institutions may be responsible for the underlying legal framework. A violation may therefore involve both levels of authority.

The draft agreement attempted to address this by allowing the EU or a Member State to participate as a co-respondent in proceedings before the ECtHR.

The CJEU nevertheless identified problems with the proposed arrangements, particularly concerning the decision to become a co-respondent and the allocation of responsibility between the Union and its Member States.

The Court considered that the proposed mechanism could interfere with the allocation of powers and responsibilities established by EU law.

8.4 The prior involvement procedure

The draft agreement also included a prior involvement procedure intended to ensure that the CJEU could examine relevant questions of EU law before the ECtHR delivered its judgment.

This was necessary because the CJEU must have an opportunity to interpret or assess the validity of the relevant EU provisions where it has not already done so.

However, the Court considered that the proposed procedure did not adequately preserve its role in every relevant situation.

The issue was not simply whether the CJEU would be consulted. It was whether the mechanism would ensure that the Court could exercise its proper jurisdiction before the Strasbourg Court examined the case.

8.5 Inter-state disputes and Article 344 TFEU

The Court also objected to aspects of the arrangements concerning inter-state disputes.

Article 344 TFEU prevents Member States from submitting disputes concerning the interpretation or application of the EU Treaties to methods of settlement other than those provided by the Treaties.

The accession agreement had to ensure that the Convention system would not become an alternative forum for resolving disputes between Member States that properly belonged within the EU judicial framework.

8.6 Common Foreign and Security Policy

A further concern related to the EU’s Common Foreign and Security Policy (CFSP).

The CJEU’s jurisdiction in this field is limited by the Treaties, although it retains jurisdiction in certain specified circumstances, including review of compliance with Article 40 TEU and review of certain restrictive measures against natural or legal persons under Article 275 TFEU.

The original draft accession agreement did not adequately account for the particular limitations on the CJEU’s jurisdiction in CFSP matters.

The Court considered that the proposed arrangements could create an imbalance between the jurisdiction of the ECtHR and the jurisdiction conferred on the CJEU by the Treaties.

Opinion 2/13 therefore demonstrated that accession was not merely a question of agreeing to an international human-rights standard. It required a constitutional design capable of accommodating two autonomous judicial systems.

The complete judgment is available in Opinion 2/13, European Commission, 18 December 2014.

9. The revised accession negotiations and the 2023 draft agreement

Following Opinion 2/13, the accession process was suspended while the EU and the Council of Europe considered how the identified problems could be resolved.

In October 2019, the European Commission indicated that the EU was ready to resume negotiations. Formal negotiations restarted in October 2020 within the framework commonly known as the 46+1 Group. The name reflected the participation of the 46 Convention contracting states other than the EU, together with the Union.

Negotiators reached a provisional agreement on a revised draft accession agreement in March 2023.

The revised text sought to address the objections raised by the CJEU in Opinion 2/13. It included changes concerning the co-respondent mechanism, prior involvement, inter-state disputes, mutual trust and the participation of the Union in the Convention’s supervisory system.

The revised agreement was designed to preserve the autonomy of EU law while allowing the ECtHR to exercise external supervision over the Union’s compliance with the Convention.

However, the negotiations did not immediately result in accession.

The principal unresolved issue concerned the relationship between the Convention’s supervisory jurisdiction and the limits of the CJEU’s jurisdiction in CFSP matters.

The EU and the Council of Europe needed to determine how the ECtHR could review alleged human-rights violations connected with CFSP measures without undermining the allocation of jurisdiction established by the EU Treaties.

The revised draft was therefore an important achievement, but it was not itself an accession agreement in force.

The distinction between a provisional negotiating agreement and a legally concluded international treaty is essential. The 2023 text required further legal and institutional steps before accession could take place.

The Council of Europe’s official account of the process is available through its EU accession negotiations page.

10. The Common Foreign and Security Policy and the jurisdictional problem

The Common Foreign and Security Policy is a particularly sensitive area of EU constitutional law.

Under the Treaties, CFSP operates through special institutional and procedural arrangements. The CJEU does not have the same general jurisdiction over CFSP as it has in other areas of EU law.

Article 24(1) TEU and Article 275 TFEU establish limitations on the Court’s jurisdiction, subject to specific exceptions.

The purpose of these arrangements is connected with the political and strategic character of foreign and security policy. Decisions may involve diplomatic relations, international security, military operations and political assessments that the Treaties have placed within a distinctive institutional framework.

However, limiting the CJEU’s jurisdiction does not mean that every act connected with CFSP is immune from judicial scrutiny.

In September 2024, the CJEU delivered judgments clarifying aspects of its jurisdiction in CFSP-related matters, including the relationship between the Treaty limitations and judicial protection.

These developments became relevant to the remaining accession negotiations because they helped clarify the extent to which the CJEU can examine conduct associated with CFSP.

The constitutional difficulty is straightforward in principle, although complex in application. If the ECtHR were able to review an alleged Convention violation arising from an EU measure in circumstances where the CJEU had no jurisdiction to examine the relevant issue, the Strasbourg Court might become the only court capable of providing judicial scrutiny.

That possibility raises questions about the balance established by the Treaties and the autonomy of EU law.

At the same time, excluding an entire category of EU conduct from effective human-rights supervision would be difficult to reconcile with the purpose of accession.

The challenge is therefore to create a system that protects individuals without transferring to the ECtHR powers that the EU Treaties have reserved to the Union’s own constitutional structure.

In November 2025, the European Commission requested a new opinion from the CJEU concerning the compatibility of the 2023 draft accession agreement with EU law. The request followed the revised negotiations and the intervening developments in the Court’s CFSP case law.

As of November 2026, the advisory procedure remains pending. Consequently, the final compatibility of the revised draft has not yet been judicially established, and the Union has not yet acceded to the Convention.

The European Parliament’s May 2026 briefing on the 2023 draft accession agreement provides a recent overview of the outstanding constitutional questions.

11. The current relationship between EU Member States and the ECHR

Although the European Union itself is not yet a party to the Convention, every EU Member State is individually bound by it.

This creates a dual obligation for national authorities.

A Member State must comply with the ECHR as a contracting state. It must also comply with EU law, including the Charter of Fundamental Rights whenever it acts within the scope of EU law.

These obligations frequently overlap.

A national authority implementing an EU directive, applying an EU regulation or enforcing an EU judicial cooperation instrument may be required to respect both the Convention and the Charter.

The precise legal framework depends on the circumstances.

Article 51 of the Charter limits its application to Member States to situations in which they are implementing EU law or otherwise acting within the scope of EU law. The Charter does not automatically apply to every domestic measure simply because the subject matter resembles an area regulated by the Union.

The ECHR, by contrast, applies to the conduct of contracting states within their Convention jurisdiction, whether or not the relevant matter is governed by EU law.

This distinction is important. A domestic measure may fall outside the scope of the Charter but remain subject to the Convention.

Where both systems apply, national authorities and courts must interpret their obligations in a manner that respects the relevant guarantees.

The Convention may also be relevant when interpreting EU rights. Article 52(3) of the Charter expressly connects corresponding Charter rights with the meaning and scope of Convention rights.

The relationship is therefore one of overlapping protection, not institutional merger.

12. The Bosphorus presumption: equivalent protection and its limits

One of the most important developments in the relationship between the two systems is the doctrine of equivalent protection established by the ECtHR in Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v Ireland.

The case concerned the impounding by Irish authorities of an aircraft leased by a Turkish airline. The measure was connected with the implementation of sanctions arising from EU obligations.

The applicant argued that the impounding violated its Convention rights, particularly the right to peaceful enjoyment of possessions under Article 1 of Protocol No 1.

The ECtHR recognised that the European Union provided a system of fundamental-rights protection broadly equivalent to that guaranteed by the Convention.

It therefore developed a presumption that a state does not depart from the Convention when it does no more than implement legal obligations arising from its membership of an international organisation that provides equivalent protection.

The presumption is not absolute.

It may be rebutted where the protection of Convention rights in the particular case is manifestly deficient.

The doctrine attempts to reconcile two principles:

First, Member States must comply with their obligations under the Convention.

Second, they must also comply with their obligations under EU law, including the principle of sincere cooperation and the effectiveness of EU legal obligations.

Without some form of accommodation, national authorities could face conflicting obligations arising from the two systems.

The presumption is particularly relevant where the Member State has no genuine discretion in implementing an EU obligation. Where national authorities retain discretion, the Convention Court may examine the exercise of that discretion more directly.

The doctrine was developed further in subsequent Strasbourg case law. It does not mean that all EU measures automatically receive immunity from Convention scrutiny, nor that the EU system is presumed to be flawless.

The presumption is also connected with the availability of judicial protection within the EU system. The existence of an effective mechanism for reviewing the relevant rights issue is important when assessing whether equivalent protection has been provided.

The leading judgment is Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v Ireland, Application No 45036/98.

13. Matthews v United Kingdom: Member State responsibility for obligations arising from European integration

Another important judgment is Matthews v United Kingdom, decided by the ECtHR in 1999.

The case concerned the exclusion of residents of Gibraltar from voting in elections to the European Parliament.

The relevant electoral arrangements arose from the structure of the European Community legal order and the way in which the United Kingdom had implemented the applicable arrangements.

The applicant argued that the exclusion violated the right to free elections under Article 3 of Protocol No 1 to the Convention.

The ECtHR held that the United Kingdom remained responsible under the Convention for ensuring that the relevant electoral rights were respected.

The judgment established an important principle: transferring powers to an international organisation does not automatically release a contracting state from its Convention obligations.

A state cannot avoid responsibility simply because the relevant legal framework derives from an international agreement or an organisation to which it belongs.

The judgment is particularly relevant to the EU because Member States have transferred significant powers to the Union through the Treaties.

It demonstrates that the Convention can apply to state conduct connected with European integration, even where the underlying legal arrangements are not entirely controlled by national institutions.

However, Matthews did not establish that the EU itself was directly responsible under the Convention. At the time, the Union was not a contracting party.

Instead, the case illustrates the indirect accountability of Member States for aspects of the European legal framework.

The judgment can be consulted through the ECtHR case database.

14. Accession and the allocation of responsibility: the co-respondent mechanism

One of the central practical questions raised by accession concerns the identification of the appropriate respondent in proceedings before the ECtHR.

The EU legal order involves a division of responsibilities between the Union and its Member States.

EU institutions adopt legislation and other legal acts, while national authorities frequently implement or enforce those measures. In some cases, the alleged violation may be attributable primarily to the EU. In others, the relevant conduct may be attributable to a Member State. In still others, both levels of authority may be involved.

The co-respondent mechanism is designed to address these situations.

Under the revised accession arrangements, the EU or a Member State may participate as a co-respondent in proceedings where the circumstances indicate that responsibility may involve both legal orders.

The mechanism is intended to prevent an individual from being placed in an unfair procedural position because the internal allocation of powers between the Union and its Member States is difficult to determine.

It also seeks to ensure that the ECtHR can examine the relevant Convention complaint with the participation of the authorities whose conduct or legal obligations are at issue.

The mechanism must nevertheless respect EU law’s internal allocation of competences.

The question of whether the EU or a Member State should participate cannot simply be determined by treating the two as interchangeable entities. Their legal responsibilities are distinct.

Accession must therefore allow the ECtHR to examine Convention responsibility while preserving the EU’s internal rules concerning the attribution of conduct and the distribution of powers.

The co-respondent mechanism is one of the principal innovations intended to make accession workable in a supranational legal system.

15. The prior involvement procedure

The prior involvement procedure is another essential feature of the accession arrangements.

Its purpose is to preserve the CJEU’s opportunity to examine a question of EU law before the ECtHR reaches a conclusion in a case involving the interpretation or validity of EU legal provisions.

The procedure responds to the special position of the CJEU within the Union’s constitutional system.

Suppose a case before the ECtHR concerns an alleged violation arising from an EU measure whose validity has not previously been examined by the CJEU. The Strasbourg Court may need to consider whether the measure is compatible with a Convention right.

However, the interpretation and validity of EU acts belong within the EU judicial framework.

The prior involvement procedure is intended to ensure that the CJEU can first exercise its jurisdiction where necessary.

This does not mean that the CJEU would determine the final Convention question. The ECtHR would retain its responsibility for deciding whether the Convention has been violated.

The distinction is important:

The CJEU interprets EU law and determines the validity of EU acts.

The ECtHR determines whether the conduct of a contracting party complies with the Convention.

The prior involvement procedure seeks to prevent the Strasbourg Court from having to interpret or assess the validity of EU law without giving the CJEU the opportunity to perform its constitutional function.

The procedure is therefore a form of institutional coordination rather than an appeal from one court to another.

16. Article 344 TFEU and the protection of the EU judicial system

Article 344 TFEU provides that Member States undertake not to submit disputes concerning the interpretation or application of the Treaties to methods of settlement other than those provided for in the Treaties.

The provision protects the CJEU’s role in maintaining the uniform interpretation of EU law.

Without this safeguard, Member States could potentially seek alternative international dispute-settlement procedures for questions that belong within the EU judicial system.

This would create a risk of conflicting interpretations and weaken the uniform application of EU law.

The accession agreement must therefore ensure that disputes between Member States concerning EU law are not transferred to the Convention system in a way that circumvents Article 344.

This does not prevent individuals from bringing Convention applications against Member States. The Convention’s individual complaint mechanism performs a different function from the resolution of disputes between Member States over the interpretation of EU Treaties.

The distinction lies in the nature of the proceedings and the legal question being examined.

An individual alleging that a Member State has violated a Convention right is invoking an international human-rights remedy. A Member State attempting to resolve a dispute with another Member State over the interpretation of EU law through an alternative forum would raise the concerns addressed by Article 344.

The accession arrangements must preserve this constitutional boundary.

17. What accession would change in practice

Accession would have several significant legal and institutional consequences.

First, the EU itself would become a contracting party to the ECHR. It would accept the Convention obligations applicable to contracting parties and participate in the supervisory system.

Second, individuals would be able, subject to the Convention’s admissibility requirements, to bring applications against the EU in relation to alleged violations attributable to its institutions, bodies, offices or agencies.

Third, the ECtHR would acquire external supervisory jurisdiction over the Union’s compliance with the Convention. This would complement the internal protection offered by the Charter and the CJEU.

Fourth, the EU would participate in the Convention’s institutional arrangements according to the special rules established by the accession agreement.

Fifth, the relationship between the CJEU and ECtHR would become more formally structured. The two courts would continue to operate independently within their respective legal orders, but the accession arrangements would establish procedural mechanisms for cooperation.

Accession would not, however, produce a general right to challenge every EU measure directly before the ECtHR.

Applicants would still need to satisfy the Convention’s admissibility requirements, including the requirement to exhaust domestic remedies where applicable and to lodge an application within the prescribed time limit.

Nor would the ECtHR become a fourth instance court reviewing the correctness of every CJEU judgment.

Its role would remain the examination of alleged Convention violations. It would not replace the CJEU as the authoritative interpreter of EU law.

Accession would also not expand the EU’s legislative competences. The Union would become subject to an additional international human-rights obligation, but it would not acquire new powers merely by joining the Convention.

The practical importance of accession lies in strengthening accountability while preserving the constitutional division of functions between the two legal systems.

18. Institutional boundaries and constitutional autonomy

The accession debate reveals a broader question about the nature of the European Union.

The EU is not an ordinary international organisation. It has a distinctive legal order characterised by direct effect, primacy, institutional autonomy and a judicial system capable of producing binding interpretations of EU law.

At the same time, the Union exercises public authority and must respect fundamental rights.

The challenge is to reconcile these characteristics with an international human-rights system that was originally designed primarily for states.

The ECtHR must be able to supervise the EU as a contracting party without becoming a general appellate authority over the CJEU.

The CJEU must preserve its responsibility for interpreting EU law without preventing external review of the Union’s compliance with fundamental rights.

Member States must remain bound by the Convention while respecting their obligations under EU law.

Individuals must have access to effective remedies without being required to navigate an unnecessarily complicated division of institutional responsibility.

These requirements are not necessarily incompatible. They demand a carefully designed relationship between the two systems.

The constitutional principle underlying accession is therefore not the subordination of one legal order to another. It is the establishment of an external accountability mechanism that respects the distinct legal authority of both.

19. Key Takeaways

• The European Convention on Human Rights is a Council of Europe treaty, not an EU instrument.
• The European Court of Human Rights in Strasbourg is separate from the Court of Justice of the European Union.
• All 27 EU Member States are parties to the ECHR, but the EU itself has not yet acceded.
• Article 6(2) TEU creates a legal obligation for the Union to accede.
• Protocol No 8 requires accession to preserve the specific characteristics of EU law and the powers of EU institutions.
• The Charter of Fundamental Rights and the ECHR overlap, but they are distinct legal instruments.
• Article 52(3) of the Charter requires corresponding rights to have the same meaning and scope as Convention rights, while allowing more extensive EU protection.
• Opinion 2/13 of 2014 found the original draft accession agreement incompatible with EU law.
• Negotiations resumed in 2020 and produced a revised draft agreement in 2023.
• The Common Foreign and Security Policy remains a particularly sensitive constitutional issue.
• The European Commission requested a further CJEU opinion on the revised draft in November 2025.
• As of November 2026, the EU has not completed accession.
• The Bosphorus presumption recognises equivalent protection within the EU legal order, subject to the possibility of rebuttal where protection is manifestly deficient.
• The co-respondent and prior involvement mechanisms are intended to coordinate responsibility and preserve the respective functions of the two European courts.
• Accession would strengthen external accountability without making the ECtHR a general appellate court over the CJEU.

20. Frequently Asked Questions

1. Is the European Union already a member of the European Convention on Human Rights?

No. All 27 EU Member States are parties to the Convention, but the European Union itself has not yet acceded. Article 6(2) TEU requires the Union to do so, but the accession process remains incomplete.

2. What is the difference between the CJEU and the ECtHR?

The CJEU interprets and applies EU law. The ECtHR interprets and applies the European Convention on Human Rights. The former belongs to the EU institutional system, while the latter is part of the Council of Europe.

3. Why does the EU need to accede to the ECHR if it already has the Charter of Fundamental Rights?

The Charter provides internal fundamental-rights protection within the scope of EU law. Accession would add external international supervision by the ECtHR and allow the Union itself to be held accountable as a contracting party.

4. Can an individual currently sue the EU before the European Court of Human Rights?

No. The EU is not currently a contracting party to the Convention, so an individual cannot bring a Convention application directly against the Union. An application may, however, be brought against an EU Member State where the requirements of the Convention are satisfied.

5. What was Opinion 2/13?

Opinion 2/13 was delivered by the CJEU on 18 December 2014. The Court concluded that the draft accession agreement negotiated in 2013 was incompatible with the EU Treaties because it did not sufficiently preserve the autonomy and specific characteristics of EU law.

6. Does Opinion 2/13 prohibit EU accession?

No. The Court did not rule that accession was impossible. It found that the particular draft agreement was incompatible with EU law. A revised agreement must satisfy the constitutional requirements identified by the Court.

7. What is the Bosphorus presumption?

It is a doctrine developed by the ECtHR under which a Member State is generally presumed to have complied with the Convention when it has done no more than implement obligations arising from an international organisation that provides equivalent fundamental-rights protection. The presumption may be rebutted where protection in the particular case is manifestly deficient.

8. Would accession make the ECtHR superior to the CJEU?

No. The two courts would retain their distinct jurisdictions. The ECtHR would supervise compliance with the Convention, while the CJEU would remain responsible for interpreting and applying EU law.

9. What is the purpose of the co-respondent mechanism?

It is designed to address cases in which an alleged Convention violation may involve both the EU and one or more Member States. It allows the relevant parties to participate in proceedings while respecting the internal allocation of responsibilities under EU law.

10. What is the prior involvement procedure?

It is a procedural mechanism intended to give the CJEU an opportunity to examine relevant questions of EU law before the ECtHR determines a case involving EU legal provisions that have not previously been examined by the CJEU.

11. Does the ECHR apply to Member States when they implement EU law?

Yes. Member States remain bound by the Convention when acting within their jurisdiction, including when implementing EU obligations. The precise interaction between the Convention and EU law depends on the circumstances, including whether national authorities retain discretion.

12. Has the EU accession agreement been approved?

A revised draft agreement was provisionally agreed by negotiators in 2023. However, this did not complete the accession process. The European Commission requested a further opinion from the CJEU in November 2025, and the compatibility procedure remains pending as of November 2026.

21. Conclusion

The relationship between the European Union and the European Convention on Human Rights is one of the most important examples of constitutional interaction between distinct European legal orders.

The EU has developed a substantial internal system of fundamental-rights protection through the Charter, general principles of law and the jurisdiction of the CJEU. The Convention, meanwhile, provides an external framework of international supervision administered by the Council of Europe and the European Court of Human Rights.

The two systems share a commitment to human dignity, liberty, equality, democracy and the rule of law. Their institutional structures, however, remain distinct.

The Lisbon Treaty recognised that the EU should not exercise public authority without accepting the same external human-rights accountability expected of its Member States. Article 6(2) TEU therefore created an obligation to accede to the Convention.

The difficulty has been translating that obligation into a legally workable arrangement. Opinion 2/13 demonstrated that accession must respect the autonomy of EU law, the jurisdiction of the CJEU, the constitutional position of Member States and the institutional independence of the Strasbourg system.

The revised negotiations have made significant progress, but the remaining questions demonstrate how carefully the relationship must be constructed. The EU cannot become a contracting party through a simple extension of the arrangements designed for states. Its supranational nature requires specific procedural and institutional solutions.

Ultimately, accession is not merely a technical treaty reform. It concerns the constitutional legitimacy of European governance and the principle that every institution exercising public authority must remain accountable for its treatment of individuals.

If successfully completed, accession would strengthen the European human-rights framework by connecting internal EU judicial protection with external Convention supervision. Its significance would lie not in replacing one system with another, but in ensuring that the two systems operate together while preserving their distinct legal identities.

22. Primary Legal Sources and Further Reading

EU Treaties and legislation

1. Article 6 of the Treaty on European Union — the legal basis for the EU’s fundamental-rights framework and obligation to accede to the ECHR.
2. Protocol No 8 relating to Article 6(2) TEU — the constitutional conditions governing accession.
3. Article 344 of the Treaty on the Functioning of the European Union — restrictions on alternative dispute-settlement procedures concerning EU Treaty obligations.
4. Article 218 TFEU — the procedure for negotiating, concluding and reviewing international agreements involving the Union.
5. Charter of Fundamental Rights of the European Union — the principal catalogue of fundamental rights within EU law.

European Convention on Human Rights

6. European Convention on Human Rights — the Convention text and its fundamental guarantees.
7. Council of Europe: EU accession to the ECHR — official information about the accession negotiations.
8. Council of Europe: Questions and Answers on EU Accession — an overview of the legal and institutional implications of accession.

Important judicial decisions

9. Opinion 2/13, European Commission, 18 December 2014 — the CJEU’s assessment of the original draft accession agreement.
10. Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v Ireland, Application No 45036/98 — the ECtHR judgment establishing the presumption of equivalent protection.
11. Matthews v United Kingdom, Application No 24833/94 — the ECtHR’s examination of Member State responsibility in the context of European integration.

Institutional and academic resources

12. European Parliament Research Service: EU Accession to the ECHR — The 2023 Draft Accession Agreement — an updated analysis of the negotiations and outstanding constitutional questions.
13. European Union Agency for Fundamental Rights: EU Accession to the European Convention on Human Rights — an examination of the legal and operational implications of accession.