HUMAN RIGHTS IN THE EUROPEAN CONSTITUTIONAL ORDER

law should be resolved. 2 But is this really the case? In this article I am going to compare the Draft revised Agreement with the most problematic issues regarding the original Draft agreement as identified by the CJEU, and I will try to find out whether the requirements set out in the Opinion 2/13 of the CJEU have been met. 1. Conditions of the Accession following Opinion 2/13 of the CJEU According to the Opinion 2/13 of the CJEU, the EU’s accession to the European Convention on Human Rights and Fundamental Freedoms (hereinafter referred to as “ECHR”) is not possible based on the original Draft agreement because this agreement “ is not compatible with Article 6 (2) Treaty on European Union (hereinafter referred to as “ TEU ” ) or with Protocol No. 8 relating to Article 6 (2) of the TEU on the accession of the Union to the ECHR ”. 3 The main shortcomings of the original Draft agreement can be summarised as follows: i. It does not lay down arrangements for the operation of the Co-respondent Mechanism and the procedure for the prior involvement of the CJEU that would enable the specific characteristics of the EU and EU law to be preserved. 4 ii. It does not exclude the possibility of disputes between Member States or between Member States and the EU concerning the application of the ECHR within the scope ratione materiae of EU law being brought before the European Court of Human Rights (hereinafter referred to as “ECtHR”). 5 iii. It does not take into account the specific characteristics of EU law with regard to judicial review in matters relating to the EU’s Common Foreign and Security Policy (hereinafter referred to as “CFSP”). 6 iv. It does not avoid the risk of undermining the principle of Mutual trust between Member States under EU law, in particular in the Area of Freedom, Security and Justice (hereinafter referred to as “AFSJ”). 7 v. It does not ensure that the power conferred on Member States by Article 53 of the ECHR, which allows the Contracting Parties to lay down higher 2 Interim Report to the Committee of Ministers, for information, on the negotiations on the accession of the European Union to the European Convention on Human Rights from the 4 th of April 2023, pp. 3–4. Available at: https://rm.coe.int/steering-committee-for-human-rights-cddh-interim-report-to the-committ/1680aace4e. Regarding the summary of the most problematic aspects of the original Draft Agreement from the perspective of the CJEU see Opinion 2/13 of the CJEU from the 18 th of December 2014, ECLI:EU:C:2014:2454, para. 258. 3 Opinion 2/13, para. 258. 4 Ibid, paras. 218-219, 234, 238, 241 a 258. See also point 53 of the Explanatory report to the Draft Agreement of Accession of the EU to the ECHR (2013). 5 And therefore, it is not compatible with the Art. 344 Treaty on Functioning of the European Union (hereinafter referred to as “TFEU”). Opinion 2/13, paras. 213 and 258. 6 Ibid, paras. 252, 257 and 258. 7 Ibid, paras. 191, 194 a 258.

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