HUMAN RIGHTS IN THE EUROPEAN CONSTITUTIONAL ORDER

for a quicker assessment of the need to apply the Prior Involvement Mechanism. It follows that the CJEU will no longer be considered as “another investigating or conciliatory body” within the meaning of Art. 35 (2), b) of the ECHR. 35 In this respect, its status will be the same as that of any other supreme court or tribunal of any other High Contracting Party. It may seem that the 2nd requirement of the CJEU has been fulfilled to the letter, this does not pose a particular problem in cases where the need for interpretation or application of the EU law is clear, in some of the less obvious cases the conflict of jurisdiction of the European courts could have a negative impact on the rapid and effective protection of fundamental rights in Europe. After all, even inter-State complaints seek to protect the rights of individuals or groups of individuals. The EU’s accession to the ECHR should strengthen this protection, not weaken it. It is to be hoped that the judges of the CJEU and the ECtHR will bear this in mind should this situation arise. 36 2.3 Judicial Review of EU Acts in the CFSP Matters and the Principle of Mutual Trust (in the AFSJ) Already in the Opinion 1/09 the CJEU stated that no international court outside the institutional and legal framework of the EU can be entrusted with the power to conduct a judicial review of acts, actions or omissions of the Union. 37 This applies in particular to acts whose legality and compliance with fundamental rights the CJEU does not have the authority to decide on, 38 such as certain acts, actions or omissions within the CFSP. 39 The Draft revised Agreement does not explicitly exclude the jurisdiction of the ECtHR in the CFSP matters as was suggested by some of the scholars. 40 However, the Draft explanatory report to the RA specifies that the EU’s accession to the ECHR should not affect its competences or the powers of its institutions. 41 This also applies to the CFSP matters. 42 The only problem could arise in cases in where the CJEU does not have jurisdiction, and the ECtHR is called upon to decide on the conformity of such 35 Art. 35 (2), b) of the ECHR. 36 For comparisson see 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, pp. 767–768. 37 Opinion 1/09 of the CJEU from the 8 th of March 2010, ECLI:EU:2011:123, paras. 78, 80 and 89. 38 Opinion 2/13, paras. 252–254. 39 Ibid, paras 255–256. See also Art. 275 (1) TFEU. 40 See TACIK, P. (2017). After the Dust Has Settled: How to Construct the New Accession Agreement After Opinion 2/13 of the CJEU , p. 965, with further references. For comparison, see PERGANTIS, V. Shades of Trust: The ECtHR, the ECJ and Their Evolving Relationship in Light of the 2023 Revised Draft Accession Agreement , p. 811. 41 Art. 1, para. 3 of the RA; Draft explanatory report to the RA, point 26. See also Art. 2 of the Protocol No. 8. 42 Draft explanatory report to the RA, point 27.

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