HUMAN RIGHTS IN THE EUROPEAN CONSTITUTIONAL ORDER

ECHR and therefore cannot be held jointly responsible for the violation through the Co-respondent Mechanism. 26 However, they agree (as do I) that the proper functioning of the prior involvement of the CJEU and the Co-respondent Mechanism will require a high degree of cooperation between the CJEU, the Member States and the ECtHR. 27 2.2 The Non-compliance of Art. 33 of the ECHR with the Art. 344 TFEU In Opinion 2/13, the CJEU called for the express exclusion of the ECtHR’s jurisdiction under Art. 33 of the ECHR over disputes between Member States or between Member States and the EU, in relation to the application the of the ECHR within the scope ratione materiae of EU law, 28 in order for the accession Agreement to be compatible with Art. 344 TFEU. This formula has been essentially adopted in the Draft revised Agreement. The Draft revised Agreement in its Art. 4 (3) stipulates that “ the EU and its Member States in their relations with each other shall not avail themselves of Art. 33 of the Convention. Nor shall the Member States of the EU avail themselves of Article 33 of the Convention insofar as a dispute between them concerns the interpretation or application of EU law ”. 29 However, it follows from the Draft explanatory report to the RA that the fact that the ECHR will become an integral part of EU law after accession does not mean that an inter-State complaint lodged by an EU Member State against an alleged violation of the ECHR by another EU Member State will necessarily involve the interpretation or application of EU law. 30 In this context, the ECtHR should provide the CJEU with “sufficient time” to assess whether and to what extent an inter State complaint brought under Art. 33 of the ECHR concerns the interpretation or application of EU law. 31 In order to ensure that this assessment does not violate an individual’s right to a decision within a reasonable time 32 (which also applies to the proceedings before the ECtHR 33 ), it is further important to note that after accession to the ECHR, the EU will be represented before the ECtHR by its own judge. 34 This will allow 26 Ibid. A possible solution to this problem is given in section 2.3 below. 27 FRANKLIN, D-L. & TZEVELEKOS, V.P. 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 , p. 766; and PERGANTIS, V. Shades of Trust: The ECtHR, the ECJ and Their Evolving Relationship in Light of the 2023 Revised Draft Accession Agreement , pp. 811–812 and 816–817. 28 Opinion 2/13, paras. 186 and 213. 29 Art. 4, para. 3 of the RA. 30 Draft explanatory report to the RA, point 82. 31 Art. 4, para. 4 of the RA. For comparison see MEINICH, T. From Opinion 2/13 to the 2023 Draft Accession Agreement: The Chair’s Perspective , pp. 690–691. 32 Art. 6, para. 1 of the ECHR. 33 See for instance Jeronovičs v. Latvia , ECLI:CE:ECHR:2016:0705JUD004489810, point 74. 34 Ibid, Art. 7, para. 1.

55