Unit:
Κατεύθυνση Διεθνές και Ευρωπαϊκό ΔίκαιοLibrary of the School of Law
Author:
Grammatikaki Faneromeni
Supervisors info:
Ρεβέκκα Εμμανουέλα Παπαδοπούλου (Rebecca-Emmanuela Papadopoulou), Associate Professor, Faculty of Law NKUA (Supervisor)
Μεταξία Ι. Κουσκουνα (Metaxia I. Kouskouna), Associate Professor, Faculty of Law, NKUA
Μανώλης Περάκης (Manolis Perakis), Associate Professor, Faculty of Law, NKUA
Original Title:
New Perspectives for the EU Accession to the ECHR : the attempt to address the CJEU concerns
Translated title:
Nouvelles perspectives pour l'adhésion de l'UE à la CEDH : La tentative de répondre aux préoccupations de la CJUE
Summary:
A resumption of negotiations for the EU Accession to the ECHR was brought on the spotlight in 2020. It is for this reason that it seems about time one revisited the concerns raised by the
Court of Justice of the European Union in its Opinion 2/13 regarding the accession of
the EU to the ECHR. To the author of the present, one must not take for granted that
further enhancement of fundamental rights protection will occur in the case of
accession, as real procedural and substantive impediments seem to arise in a post-accession era, which could potentially ultimately lead to a somewhat legally uncertain
judicial system for the individual.
On this note, a rather thorough examination of the CJEU concerns must occur in light
of the resumption of negotiations and a new perspective of accession. Opinion 2/13
essentially represents a mandatory wish list for issues to solve – if they can be solvedthe negotiation committee has its work cut out. The present paper attempts to revisit the
concerns raised by the CJEU and provide sensible solutions in the case they can be
found. These issues can be summed up to six main points: the co-respondent
mechanism and the prior involvement of the Court of Justice of the European Union,
Article 344 of the Treaty on the Functioning of the European Union, and the exclusivity
of the EU adjudication of Member State disputes, Protocol 16 on the optional Advisory
opinion procedure, the puzzling nature of both articles 53s of the Charter of
Fundamental Rights of the EU and the European Convention of Human Rights and the
problem of higher standards, the problem of mutual trust and finally jurisdiction in the
Common Foreign Security Policy. 2
Those issues – which essentially constitute the impediments to accession so far- and
are being the focus of the Commission at the moment so as to be resolved will be
analyzed in the second part of this paper. The first part will attempt to provide a general
overview of the advisory jurisdiction of the Court of Justice and its importance to the
judicial system – thus having been uplifted to a binding opinion, not allowing for the
Institutions to act in case a negative opinion is issued. Furthermore, it shall dig into the
particularities of the two judicial systems and analyze the characteristics that make them
unique, as well as their interaction with the Bosphorus ruling in the spotlight. It will
also attempt to portray a historical/institutional evolution that leads to the attempt of
accession, making a remark to article 6 of the Treaty on the European Union. It will
evaluate the Court’s objection from a constitutional law perspective putting the
autonomy of EU law and the absolute necessity of its preservation in the spotlight while
going through the implications of acquiring (maybe too many) legal instruments for the
protection of fundamental rights, namely the Charter and the ECHR and how this can
lead to being counterproductive for their protection. The status of the Draft Accession
Agreement for the Accession of the Union to the European Convention of 2013 will be
analyzed along with the legal position the Convention will acquire in the EU legal order
in the post-accession era.
All of the above are considered necessary for the reader to acquire a general overview
of the circumstances so far, the evolutions and the interactions of the two leading
European actors in the protection of fundamental rights, as in the opinion of the author
of the present, the Union can be seen as evolving dynamically towards a more and more
fundamental rights protection system, along with being a particular legal order which
accommodates the internal market amongst its Member States and acts proactively to facilitate joint and harmonious cooperation in many fields, namely the Monetary
Union and the Area of Freedom, Security, and Justice.
Main subject category:
Law and Legislation
Other subject categories:
European law
Keywords:
EU Accession ECHR, fundamental rights, human rights, European Public Law, EU constitutional law, Opinion 2/13, CJEU, objections, resumption of negotiations, CFSP, co-responent mechanism, prior involvement, Charter of Fundamental Rights of the EU,
