The Sting is in the Tail : CJEU Opinion 2/13 objects to draft agreement on accession of the EU to the European Convention on Human Rights
Faculty of Law
European human rights law review. - London
, p. 185-198
University of Antwerp
In a historic Opinion issued on December 18, 2014, the Court of Justice of the European Union ruled that the draft agreement on the EU accession to the ECHR is not compatible with the EU Treaties. This contribution first analyses the CJEUs objections in Opinion 2/13. Subsequently, the future of the EU accession to the ECHR following the Opinion and the potential consequences for the Convention system are briefly examined. The contribution concludes that the CJEUs reasoning, particularly concerning art. 53 of the ECHR, the principle of mutual trust and the CFSP, appears to not be centred around closing the gap in European fundamental rights protection, but rather solely focused on ensuring its exclusive jurisdiction. However, the rights perspective should have played an equally important role in Opinion 2/13 as closing the gap in European fundamental rights protection is the ratio leges behind the legal obligation to accede in art. 6 TEU. The CJEU also externalises internally resolvable issues, especially as regards Protocol No. 16 and inter-Party cases. Due to this approach, the CJEUs checklist of amendments is both long and politically unfeasible. Consequently, the hope to have finally arrived in the concluding stages of the strenuous thirty year long accession process seems once more crushed. Again, the sting is in the tail.