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The CJEU misses the course in opinion 2/13: is the accession of the EU to the ECHR still worthwhile?

Abstract

On 18 December 2014 the CJEU issued Opinion 2/13 in which, on reply to the request for interpretation filed by the Commission in accordance with Article 218(11) TFEU, it ruled that the Draft Accession Agreement of the EU to the ECHR is not compatible with Article 6(2) TEU nor with Protocol no. 8 TEU. This incompatibility derives from five fundamental elements, namely, the specific characters and the principle of autonomy of EU law, the scope of Article 344 TFEU, the role of co-defendant, the prior intervention mechanism of the CJEU and judicial review of CFSP. The Court of Justice, departing from AG Kokott's opinion, opts for such an extensive interpretation of the principle of autonomy of EU law that renders accession almost impossible. This ruling of the ECJ deserves very negative criticism. Not only it impedes accession of the EU to the ECHR in the terms negotiated in the Draft Agreement, this Opinion is likely to negatively influence as well the judicial dialogue between the ECHR and the ECJ and with the Constitutional Courts of the Member States. It finally raises the question of whether it is still worth for the EU to continue trying to access to the ECHR. The reply to this question is not easy. However, it ultimately falls not on the CJEU, but on Member States.

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