HUMAN RIGHTS IN THE EUROPEAN CONSTITUTIONAL ORDER

created or applied. By acceding to the ECHR, the EU would commit to upholding the Convention across all its operations and could be held accountable for any violations. In the event of future accession, to which the EU is committed 22 , it will be essential to resolve the relationship between the CJEU and the European Court of Human Rights (‘ECtHR’), as well as the legal connection between the Charter and the ECHR. (Fortunately, this task may not be overly challenging, given the Charter’s limited scope and its reference to the ECHR as a framework for interpreting the rights it enshrines.) In 1979, the European Commission proposed accession to the ECHR, and further propositions were made by the European Parliament in 1989 and 1996. 23 The idea of joining the ECHR remained alive, as evidenced by the Laeken Declaration: “Thought would also have to be given to whether the Charter of Fundamental Rights should be included in the basic treaty and to whether the European Community should accede to the European Convention on Human Rights” . 24 The first significant challenge to the idea of the EU acceding to the ECHR came with CJEU Opinion No. 2/94 in 1996, where the Court addressed the issue of compatibility between EU law and such accession. The Court concluded that, within the existing legal framework, accession to the ECHR was not feasible, as the EU lacked explicit legal authority to enter into treaties in the field of human rights. 25 The CJEU emphasized that such a move would require substantial alterations to the EU’s constitutional structure, particularly regarding the distribution of powers between the EU and its Member States. 26 However, this argument lost its force with the adoption of the Treaty of Lisbon, which explicitly granted the EU the authority to conclude such treaties. 27 Nevertheless, the more recent Opinion No. 2/13 of the CJEU, dated December 14, 2014, did not bring positive news regarding the potential accession of the EU to the ECHR. The CJEU stated that the accession agreement, in its proposed form, is incompatible with EU law 28 , mainly for reasons that have not yet been fully resolved. First and foremost, the CJEU expressed concern about the threat to the autonomy 22 View Art. 6(2) of the Treaty on European Union. 23 MCCRUDDEN, Ch. The Future of the EU Charter of Fundamental Rights., p. 3. Available at: https:// ssrn.com/abstract=299639 or http://dx.doi.org/10.2139/ssrn.299639. 24 Bulletin of the European Union. Luxembourg: Office for Official Publications of the European Communities. Presidency Conclusions of the Laeken European Council (14 and 15 December 2001), 2001, No 12, p. 19-23. 27 See Art. 216 of the Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, signed at Lisbon, 13 December 2007, Available at: https://eur-lex.europa.eu/eli/ treaty/lis/sign/eng 28 The agreement is not compatible with Article 6(2) TEU or Protocol No. 8 EU (in para. 258 of the CJEU Opinion No. 2/13). 25 The CJEU Opinion No. 2/94, para. 36. 26 The CJEU Opinion No. 2/94, para. 35.

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