HUMAN RIGHTS IN THE EUROPEAN CONSTITUTIONAL ORDER

standards of protection of fundamental rights than those guaranteed by the ECHR (and thus to apply national standards of protection of fundamental rights), would not undermine the level of protection afforded by the Charter of Fundamental Rights of the European Union (hereinafter referred to as “Charter”) or the primacy, unity and effectiveness of EU law. 8 vi. No specific provision is made for the possible participation of the EU in the supervisory bodies of the ECHR. 9 vii. It does not establish a mechanism to ensure that complaints from non Member States and complaints from individuals are properly lodged against Member States or against the EU. 10 In the following pages I will compare the above-mentioned shortcomings of the original Draft Agreement with the wording of the Draft revised Agreement (and its Draft explanatory report), in order to draw a conclusion as to whether or not the requirements of the CJEU have been met. 2. Proposed Solutions 2.1 Prior Involvement of the CJEU and the Co-respondent Mechanism It follows from the Opinion 2/13 of the CJEU that, with the respect to the subsidiary nature of the control mechanism established in the ECHR and to ensure the proper functioning of the EU judicial system, 11 “ the method of monitoring compliance with the ECHR must be constructed in such a way as to ensure that in any case held before the European Court of Human Rights, which involves the interpretation of primary or secondary EU law, the Union is fully and systematically informed about it in such a way that the competent Union authority is able to assess whether the CJEU has already dealt with this issue in its jurisprudence and, if not, to ensure the initiation of the preliminary proceedings ”. 12 That is, in the case of complaints of violations of the ECHR that should have occurred in connection with primary or secondary EU law, which has not yet been interpreted by the CJEU, the ECtHR would be obliged to refer this question to the CJEU and await its decision. The condition for maintaining the preliminary ruling procedure is that the CJEU will not assess the factual circumstances of the case, but only its legal basis. 13 If it finds that the interpretation of EU law is inadequate, 8 Ibid, paras. 187–190 and 258. In other words, it does not ensure coordination between the Art. 53 of ECHR and Art. 53 of the Charter. 9 Art. 1 (a) of the Protocol No. 8 relating to Article 6 (2) of the TEU on the accession of the Union to the ECHR (hereinafter referred to as “Protocol No. 8”). 10 Ibid, Art. 1 (b). 11 Opinion 2/13, para. 236. 12 Press Release of the CJEU No. 180/14, from the 18th of December 2014, p. 3, art. 3, cited: [2025-04-22]. Available at: Presse et Information. 13 Draft explanatory report to the Agreement on the Accession of the European Union to the Convention for the

52