HUMAN RIGHTS IN THE EUROPEAN CONSTITUTIONAL ORDER

within the EU, I see no teleological basis for an EU body to have the exclusive right to render binding interpretations of it. I am furthermore convinced that this framework does not pose a threat to the autonomy of EU law. Just as the CJEU should not hold the authority to issue binding interpretations of the ECHR, it follows that the ECtHR should not possess binding interpretative power over EU law. If the Member States have indeed conferred adequate competence upon the EU to enter into such an international treaty, this submission to the Convention’s obligations should not be viewed as diminishing the Union’s autonomy. Instead, it represents a deliberate and considered delegation of certain authority to a legitimate international body. This arrangement respects the principle of shared competence and reflects a conscious decision by the EU to engage collaboratively without sacrificing its legal independence. Consequently, I come to the conclusion that it should not be necessary for the ECHR to be incorporated into EU law in the same manner as acts adopted by EU institutions. Given that the EU is a sui generis international entity to which Member States have delegated portions of their sovereign powers, it is logically consistent that an EU institution should provide a binding interpretation of EU legislation, ensuring its legitimacy. Essentially, the entity responsible for creating legislation should also be the one to interpret it. In contrast, the ECHR is a document not originally crafted within the EU framework. Although any treaty of accession to the Convention currently under negotiation should be reviewed by the CJEU, the Convention itself remains an independent and self-sufficient legal instrument. In my view, to overcome the challenges of the EU’s accession to the ECHR, the community must be prepared to make certain concessions. It appears most practical to recognize that the ECHR should not be integrated into European law in the same way as ordinary legislative acts or international treaties. The ECHR has its own autonomous system of supervision and control, which could be undermined if interpreted by the CJEU. While it remains uncertain whether this approach would align with the Treaties’ provisions, I believe it would ultimately serve the greater good. Alternatively, an Accession Treaty could include a clause – subject to CJEU interpretation as part of European law – that stipulates the Convention’s formal inclusion in EU law while preserving the ECtHR’s exclusive jurisdiction. In cases of uncertainty, the CJEU could refer to the ECtHR for a binding advisory opinion. We can even argue that the autonomy of European law in the field of human rights is significantly constrained, particularly when considering the interplay between Article 52(3) and Article 53 of the Charter. These provisions suggest that the interpretation of rights guaranteed by the Charter must conform to the minimum level of protection established by the ECHR. As Koen Lenaerts observes: “…if the ECtHR raises the level of protection of a fundamental right (or decides to expand its scope of application) so as to overtake the level of protection guaranteed by EU law, then

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