HUMAN RIGHTS IN THE EUROPEAN CONSTITUTIONAL ORDER

it should give priority to ruling on this issue within a shorter period of time. 14 A preliminary ruling by the CJEU cannot affect the competence of the ECtHR to give a final decision on whether or not there has been a violation of the ECHR. In this respect, the ECtHR is not bound by the conclusions of the CJEU. 15 Moreover, this procedure only applies in cases where the EU has the status of co respondent. 16 The EU or its Member State may become a co-respondent to proceedings either by accepting the invitation of the ECtHR or on its own initiative. 17 The ECtHR should accept the EU’s request in case of a complaint of a violation of the ECHR directed against one or more of its Member States, which should have occurred as a result of the application of primary or secondary EU law. This is particularly the case where it appears that the violation could only have been prevented by failure to comply with an obligation under EU law. In this respect, the ECtHR should inform the EU of all such complaints. 18 Similarly, the ECtHR should inform all the Member States of complaints lodged against the EU relating to violations of the ECHR arising from the primary EU law, and where appropriate, accede to their request to become co-respondents in the relevant proceedings. 19 The Draft revised Agreement further establishes the joint responsibility of the EU and its Member States for any alleged violation of the ECHR in respect of which they have become a co-respondents. 20 The Prior Involvement Mechanism also has the effect that, in cases falling within the scope of EU law, the High Contracting Parties that would seek for an advisory opinion of the ECtHR under Protocol No. 16 to the ECHR to be issued, would instead have to submit a request to the CJEU for a preliminary ruling under Art. 267 of the TFEU. 21 According to the negotiation group this should be the solution to the 1 st shortcoming mentioned above. However, the Draft revised Agreement does not provide for any procedure to be followed in a situation where the ECtHR has found a part of EU Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as “Draft explanatory report to the RA”), point 77. 14 Ibid, point 79. This period should be 6-8 months. 15 Ibid, point 78; Art. 3 para. 7 of the RA. 20 Draft explanatory report to the RA, point 77. For further analysis of the Co-respondent Mechanism and the prior involvement of the CJEU, see LOCK, T. (2025). Implications of the Revised Draft EU Accession Agreement for the ECHR. European Convention on Human Rights Law Review (published online ahead of print 2025), pp. 1-37, cited: [2025-02-19]. Available at: https://doi.org/10.1163/26663236 bja10115. 21 Draft explanatory report to the RA, point 86; Art. 5 of the RA. See also CHABLAIS, A. (2024). EU Accession to the ECHR: The Non-EU Member State Perspective . European Papers – A Journal on Law and Integration, vol. 9, no. 2, p. 724, cited: [2025-02-19]. Available at: https://doi.org/10.15166/2499 8249/779. 16 Art. 3 para. 7 of the RA. 17 Art. 3, para. 5 of the RA. 18 Ibid, Art. 3, para. 7. 19 Ibid, Art. 3 para. 8.

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