20 December 2014

ECJ delivers negative opinion on draft accession agreement of EU to ECHR

On 18 December 2014, the Court of Justice of the European Union (‘ECJ’) delivered a negative opinion on the draft agreement on the accession of the European Union (‘EU’) to the European Convention for the Protection of Human Rights (‘ECHR’). Insisting that ‘accession must take into account the particular characteristics of the EU’, it stated that EU’s accession to the ECHR under the provisions of the current draft agreement would undermine the autonomy and primacy of EU law.

The Court notably expressed concerns about the effect of the accession on internal relations between member States and the EU, given that ‘as regards the matters covered by the transfer of powers to the EU, the Member States have accepted that their relations are governed by EU law to the exclusion of any other law’, and that ‘EU law imposes an obligation of mutual trust between those Member States’. Next, the Court pointed out that under the current draft agreement the ECtHR would be able to adjudicate disputes on the interpretation of EU law, undermining the primacy of the ECJ in this regard.

The Court also rejected the co-respondent mechanism, considering that ‘the ECtHR would be required to assess the rules of EU law governing the division of powers between the EU and its Member States’ and that it ‘could adopt a final decision in that respect which would be binding both on the Member States and on the EU.’

Finally, the Court objected the possibility of reviewing conduct in the context of the common foreign and security policy (‘CFSP’), considering that the ECJ itself ‘cannot, for want of jurisdiction, review in the light of fundamental rights’ acts performed in the context of the CFSP.

Read more on the topic:

SHARES Briefing Paper

• A New Framework for Allocating International Responsibility: the EU Accession to the European Convention on Human Rights (31 January 2014), edited by Maarten den Heijer and André Nollkaemper

SHARES Blog

• Cedric Ryngaert, Shared responsibility and the draft EU-ECHR Accession Agreement: some observations regarding attribution and the intervening role of the Court of Justice (3 November 2013)
• Tobias Lock, Shared responsibility after EU accession to the ECHR revisited (14 April 2013)
• Tobias Lock, Sharing responsibility? The co-respondent mechanism and EU accession to the ECHR (8 October 2012)

Verfassungsblog

• Tobias Lock, Oops! We did it again – the CJEU’s Opinion on EU Accession to the ECHR (18 December 2014)

Tags: Accession, ECHR, EU

Source: Court of Justice of the European Union - Press Release No 180/14