This article examines the complicated process of the European Union’s accession to the European Convention on Human Rights. It highlights the institutional gap that leaves the EU outside the Strasbourg supervisory system, while discusses the key legal and political obstacles.

All 46 member states of the Council of Europe – including the 27 EU member states – are bound by the European Convention on Human Rights (ECHR), however the European Union remains a non-party. This institutional gap means that people cannot challenge actions of EU institutions, bodies or agencies before the European Court of Human Rights (ECtHR), despite the fact that the human rights instruments of both integrations make it possible (if not mandatory) for them to join each other’s frameworks – with an eye on strengthening protections. In the current state of affairs, individuals may bring applications against EU member states when they implement EU law, but the EU itself cannot participate in those proceedings, nor can it be held directly responsible for potential human rights violations.

 If the EU would join the ECHR, it would let the EU respond to complaints about the violations of the Convention and take part in supervising the execution of ECtHR judgements. Furthermore, the EU would be subjected to the international human rights obligations as its member states, thereby integrating the Union into the external supervisory mechanism of the Convention. In doing so, it would reinforce coherence between the Strasbourg and Luxembourg courts, enhance protection for the individuals against EU actions, and strengthen the credibility of the EU in its external relations, when promoting human rights.

The idea of accession aims to create a European legal framework for human rights protection. Despite recently intensified political support for this objective as part of the Working Group 46+1, the accession process has been long and complex, mostly raised by the Court of Justice of the European Union (CJEU). The following sections trace the key milestones, legal debates, and current state of negotiations surrounding the EU’s accession to the ECHR.

The key milestones of the negotiations

The accession of the EU has been under discussion since the late 1970s. The aim of accession is to create a single European legal space for human rights protection. The process of accession is still ongoing and has not been straightforward.

The CJEU gave its first opinion – Opinion 2/94 – in 1996. The Court emphasised, that the European Community didn’t have the competence to accede to the ECHR. It underlined that for the legality of Community measures, respect for human rights is required. However, acceding to the ECHR would fundamentally alter the existing Community framework for human rights protection, as it would require the Community to join an external international institution system and to incorporate the Convention’s entire set of obligations into its legal order. A transformation like this would necessitate such a constitutional change, that it would exceed the scope of Article 235 of the Treaty on the Functioning of the European Union.

The matter resurfaced following the adoption of the EU Charter of Fundamental Rights (CFR) on 7 December 2000. It could be stated that, there is a close connection between the Convention and the CFR. However, this raised the question of inconsistency in the protection of human rights, as the case law of the ECtHR and the CJEU probably diverge.

The negotiations regarding the accession became more serious in July 2010, after the adoption of the Protocol No. 14 of the ECHR and the Treaty of Lisbon (Treaty), The Treaty entered into force on 1 December 2009 and introduced the legal provision for the accession in Article 6 (2). The 14^th Protocol to the ECHR created the legal basis for the EU accession by adding Article 59 (2), and stating “[t]he European Union may accede to this Convention”.

In 2010 the Ministers of Justice gave a mandate, on one hand, to the European Commission to conduct the negotiations between the EU and the Council of Europe, and on the other hand, to the Steering Committee for Human Rights (CDDH) to elaborate the necessary legal instruments. In 2012 the Committee of Ministers instructed the CDDH to continue to finalize the conditions of the accession with the representative of the EU. These negotiations were carried out in the so-called ‘47+1’ ad hoc negotiation group. The CDDH, in June 2013 gave an interim report to the Committee of Ministers stating that a comprehensive package of legal instruments regarding the accession was accepted. This was the so-called Draft Accession Agreement, which was finalized on 5 April 2013.

However, in 2014 the CJEU delivered the Opinion 2/13, stating in paragraph 258, that the Draft Accession Agreement was incompatible with EU treaty rules. The CJEU emphasised, that the accession could disturb the balance of the EU, compromise the autonomy of the EU law and would undermine the principle of mutual trust. Still, the European Commission advocated the opposite position (paragraph 73) supported by the observing Member States (paragraph 109). As a result, the negotiations were suspended.

In October 2019, the European Commission informed the Secretary General of the Council of Europe, that the EU was ready to resume the negotiations. Essentially, the parties of the negotiations agreed that they would rather pick up the negotiations where they left off in 2013 and considered the Accession Agreement the foundation for the upcoming meetings. The European Commission highlighted four main areas of concern, so-called ‘negotiation baskets’: (i). the European Union’s particular procedural tools in cases before the ECtHR, (ii) mechanisms allowing parties to bring cases and national courts to seek advisory guidance, (iii) the application of mutual trust between Member States in cooperation, (iv) the EU’s policies concerning foreign affairs and security. The upcoming negotiations centred around these areas.

The current status of the negotiations

In mid-2020 the negotiations gained fresh momentum and the ‘47+1’ negotiation group had its first online informal meeting in June 2020. On 16 March 2022 the Russian Federation was excluded from the Council of Europe and on 16 September it ceased to be a party of the ECHR. As a result, the ‘47+1’ ad hoc negotiation group became the ‘46+1’.

The last official negotiation meeting took place on 14-17 March 2023, and on this meeting, many aspects of the accession were covered. The negotiation group were able to reach an agreement to resolve the issues raised by Opinion 2/13 and the issues regarding baskets (i)-(iii). The negotiating group considered the proposed solutions for baskets (i)-(iii) to be consistent with the general principles laid down by the ‘46+1’ group. These include safeguarding equal rights for individuals and applicants, ensuring equality among all contracting parties and preserving, as far as possible the existing ECHR supervisory mechanism and its identical application to the EU and all other parties.

However, questions about the Common Foreign and Security Policy (CFSP) remained a concern, and the EU informed the ‘46+1’group that it intended to address it internally. This issue concerns the fact, that certain EU foreign and security policies fall outside the jurisdiction of the CJEU, which creates a potential gap in the judicial review when the EU accedes to the ECHR. The EU has argued during the negotiations that the distribution of competences must reflect its internal system of allocating responsibility for CFSP acts. The CDDH adopted its interim report to the Committee of Ministers in April 2023 at an extraordinary meeting. In May 2024, the Committee of Ministers took note with satisfaction that the EU would like to resolve the aforementioned issue internally.

In May 2025 a resolution was adopted by the Council of Europe regarding an invitation to the Council of the EU, to request for an immediate opinion form the CJEU about the compatibility of the revised draft accession instrumentswith the European Union Treaties. Afterwards, the Justice Commissioner has revealed plans to seek a fresh legal opinion form the CJEU, regarding the latest agreements of the accession, with the expected timeline of 18 to 24 months. Still, there are concerns voiced by member states, in the form of the so-called ‘Letter of Nine’ regarding the ECtHR’s activism in expanding the scope of the ECHR in matters of migration and security.

The preservation of the EU’s legal autonomy has resulted in a persistent institutional gap, effectively shielding it from external judicial oversight by the ECtHR. Following the Opinion 2/13, the pursuit of this autonomy has solidified a state of affairs where the EU remains outside the Strasbourg system.

The principle of mutual trust plays a central role in shaping the relationship between the CJEU and the ECtHR. On one hand the CJEU has traditionally conceptualised mutual trust as a quasi-automatic obligation requiring Member States to presume that others comply with EU values, except where there are ‘exceptional circumstances’. On the other hand, the ECtHR has consistently adopted a more individualised approach stating, that national courts should refrain from giving automatic effect to mutual trust, whenever there are substantial grounds to believe that a person faces a real risk of treatment contrary to the Conventions.

A clear illustration of these different approaches can be seen in the standpoint of the two Courts in the cases of OCI v Romania (2019) and Aguirre Zarraga. In OCI v. Romania, the ECtHR held that mutual trust cannot justify returning a child where there is a serious risk of facing an abusive situation, emphasising that States may incur responsibility under the ECHR even when acting in compliance with EU obligations. By contrast, in Aguirre Zarraga, the CJEU gave priority to mutual trust as a quasi-automatic principle, ruling that the enforcing Member State cannot review whether fundamental rights – such as the child’s right to be heard – were respected in the issuing State, and it cannot oppose the enforcement of a certified judgement.

Another illustrative example is the different approaches in Ilias and Ahmed v. Hungary (2019) and FMS and others (2020). The Strasbourg Court ruled, that the placement of asylum seekers in a transit zone pending the examination of their applications did not constitute unlawful detention under Article 5. However, the CJEU reached the opposite conclusion, finding that confinement in a transit zone amounts to detention, thereby triggering the applicable conditions and procedural safeguards under EU law. Despite the substantially similar factual background, the two Courts thus arrived at different conclusions, reflecting a diverse level of fundamental rights protection under the ECHR and the Charter of Fundamental Rights of the European Union.

Without a coherent framework, the Member States of the EU remain the sole point of friction and liability, held accountable for implementing EU mandates while the Union itself – as the primary author of the conduct – remains beyond the reach of the Strasbourg Court. This divergence places the Member States in a structurally difficult position, as they must simultaneously comply with EU law obligations of cooperation, and with human rights guarantees under the ECHR, forcing national authorities and courts to navigate between competing standards.

Conclusion

The EU’s accession to the ECHR would conclude over forty years of negotiations and significantly reshape Europe’s human rights landscape. It would strengthen coherence between the Strasbourg and Luxembourg Courts, enhance legal certainty, and integrate the EU fully into the Convention’s supervisory system.

Once the CJEU issues a favourable opinion, the Committee of Ministers must adopt the revised Accession Agreement and open it for signature, followed by ratification from all High Contracting Parties under Article 59 ECHR. The consequences of a failed accession could be serious, and the goals of consistency and stability in human rights protection must remain central.

Despite the setback of Opinion 2/13, the negotiations did not start from scratch; much groundwork has already been laid, and the 2023 technical agreement provides a strong basis. Yet the project still demands considerable legal and political effort, especially given ongoing concerns about whether the latest solutions adequately address the ECtHR’s objections and the continued political resistance among some states.

Nevertheless, if the remaining issues are resolved, the EU and the ECHR may finally formalise their long-anticipated partnership.

Eszter Gondoly is a fourth-year law student at the University of Debrecen. Previously, she has been a trainee at the European Court of Human Rights and participated in the International Moot Court Competition in Law and Religion. Her research interests are public law and comparative constitutional law, with a particular focus on judicial independence and the jurisprudence of the Strasbourg Court.