EUROPEAN COURT OF HUMAN RIGHTS IN ACTION / Alla Tymofeyeva (ed.)

4. Next, the FEU Treaty provides that Member States undertake not to submit a dispute concerning the interpretation or application of the Treaties to any method of settlement other than those provided for by the Treaties. Consequently, where EU law is at issue, the Court of Justice has exclusive jurisdiction in any dispute between the Member States and between those Member States and the EU. 5. Lastly, the specific characteristics of EU law as regards judicial review in matters of the Common Foreign and Security Policy (CFSP). As EU law now stands, certain acts adopted in the context of the CFSP fall outside the ambit of judicial review by the Court of Justice. That situation is inherent to the way in which the Court of Justice’s powers are structured by the Treaties, and, as such, can only be explained by reference to EU law alone. Nevertheless, on the basis of accession as provided for by the draft agreement, the European Court of Human Rights would be empowered to rule on the compatibility with the Convention of certain acts, actions or omissions performed in the context of the CFSP, notably those whose legality the Court of Justice cannot, for want of jurisdiction, review in the light of fundamental rights. Such a situation would effectively entrust, as regards compliance with the rights guaranteed by the Convention, the exclusive judicial review of those acts, actions or omissions on the part of the EU to a non-EU body. Therefore, the draft agreement fails to have regard to the specific characteristics of EU law with regard to the judicial review of acts, actions or omissions on the part of the EU in the area of the CFSP. After this ruling (Opinion 2/13) the negotiation process regarding the accession of the EU to the ECHR was frozen for a period of 5 years but has recently moved forward. By letter on 31 October 2019, the European Commission informed the CoE Secretary General that the European Union stood ready to resume the negotiations. On 15 January 2020, the CoE Ministers’ Deputies approved the continuation of the work of the Steering Committee for Human Rights (CDDH) to finalise as a matter of priority the legal instruments setting out the modalities of accession of the EU to the ECHR , including its participation in the Convention system and, in this context, to examine any related issue. The CDDH ad hoc negotiation group (“47+1”) on EU accession to the ECHR held its 9th meeting 23-25 March 2021 where it discussed in particular, proposals relating to Article 53 of the Convention, the principle of mutual trust between the EU member states as well as the situation of EU acts in the area of the Common Foreign and Security Policy that are excluded from the jurisdiction of the Court of Justice of the European Union. The last meeting took place on 29 June – 2 July 2021. The group discussed proposals related to the EU’s specific mechanism of the procedure before the Court, the operation of inter-party applications and the principle of mutual trust between EU member states. The next meeting is scheduled for 5-8 October 2021. 2.3 Council of Europe In 1949, the Treaty of London established the Council of Europe (CoE) based on principles of pluralist democracy, human rights, and the rule of law. For a state to join the COE, it must demonstrate both a respect for the rule of law and for human rights. Additionally, the COE is concerned with promoting European culture and diversity, consolidating and maintaining democratic stability, and promoting economic strength. States that join the Council of Europe retain their individual sovereignty and political identity. However, they must fulfil treaty obligations signed at the COE headquarters located at the Palais de l’Europe in Strasbourg (France). The institution’s official languages are English and French, although the Parliamentary Assembly also uses German, Italian, and Russian as working languages. The Council has 47 member states with over 900 million people and is in dialogue with over 400 non-governmental organizations (NGOs) with consultative status. The Council of Europe has granted several states Observer Status, including Canada, the Holy See (the Vatican), Japan, Mexico, and the United States.

18

EUROPEAN COURT OF HUMAN RIGHTS IN ACTION