HUMAN RIGHTS IN THE EUROPEAN CONSTITUTIONAL ORDER

primary law to be incompatible with the ECHR, but the CJEU has not. This means that if the ECtHR holds the respondent Member State and the EU as a co-respondent jointly responsible for a violation of the ECHR stemming from the EU law, it will be up to the CJEU to decide on the apportionment of the responsibility for the violation, even though he did not find any. It also means that the applicant can claim monetary compensation from both the Member State and the EU. 22 Another problem arises from the fact that the accession Agreement itself (after the accession) becomes a part of EU secondary law. This means that there exists a potential risk that the CJEU could consider this fact alone to be sufficient to trigger the application of the Prior Involvement Mechanism. 23 The resulting situation could lead to conflicts between the CJEU and the ECtHR. Whether and how are these shortcomings going to be resolved will largely depend on the decision of the CJEU and possibly further negotiations. The issue of the Prior Involvement Mechanism and the Co-respondent Mechanism has recently been widely discussed in the academic field. While some of the scholars consider that the Draft revised Agreement has largely met the requirements of the CJEU, 24 others try to point out any possible shortcomings in the application of the Prior Involvement Mechanism and the Co-respondent Mechanism. This could involve the strict conditions for their applicability 25 or the question of the allocation of responsibility for the violation of the ECHR in cases involving EU law, in particular in situations where the EU or its Member State has made a valid reservation to the 22 MEINICH, T. (2024). From Opinion 2/13 to the 2023 Draft Accession Agreement: The Chair’s Perspective . European Papers – A Journal on Law and Integration, vol. 9, no. 2, pp. 689–690, cited: [2025-02-18]. Available at: https://doi.org/10.15166/2499-8249/777. For comparison see PERGANTIS, V. (2024). Shades of Trust: The ECtHR, the ECJ and Their Evolving Relationship in Light of the 2023 Revised Draft Accession Agreement. European Papers - A Journal on Law and Integration, vol. 9, no. 2, pp. 811-812, cited: [2025-02-19]. Available at: https://doi.org/10.15166/2499-8249/784. 23 TACIK, P. (2017). After the Dust Has Settled: How to Construct the New Accession Agreement After Opinion 2/13 of the CJEU . German Law Journal, vol. 18, no. 4, p. 961, cited: [2024-02-08]. Available at: https://doi.org/10.1017/S2071832200022203. 24 See for instance BUCKESFELD, J. & WESSEL, R.A. (2024). The Effect of Opinion 1/17 on the EU ECHR Draft Accession Agreement: Lessons Learned? European Papers – A Journal on Law and Integration, vol. 9, no. 2, pp. 776–781, cited: [2025-02-19]. Available at: https://doi.org/10.15166/2499-8249/782; and LOCK, T. (2024). EU Accession to the ECHR: when, how and implications , pp. 6–12 and 17, cited: [2025-02-19]. Available at: http://dx.doi.org/10.2139/ssrn.4766356. 25 Specifically, that the only criterion is the absence of any discretion in the implementation or application of EU law by the respondent Member State. This means that in cases where the respondent State has had a certain degree of discretion, the Co-respondent Mechanism won’t be applicable. For comparison see FRANKLIN, D-L. & TZEVELEKOS, V.P. (2024). The 2023 Draft Agreement on the EU Accession to the ECHR: Possible “Gaps” and “Cracks” in the Co-respondent Mechanism and the Implications for the Bosphorus Doctrine . European Papers – A Journal on Law and Integration, vol. 9, no. 2, pp. 755, 760– 763 and 766–767, cited: [2025-02-18]. Available at: https://doi.org/10.15166/2499-8249/781.

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