HUMAN RIGHTS IN THE EUROPEAN CONSTITUTIONAL ORDER

an acts, actions or omissions of the EU with the ECHR. 43 The possible solution which some of the scholars have suggested in the past and which could still solve this problem, would be to extend the jurisdiction of the CJEU in relation to the CFSP, 44 which is currently highly restricted. 45 However, this would require a revision of the EU’s founding treaties, since according to the Articles 5 (1) and 5 (2) of the TEU, “ the Union shall act only within the limits of the competences conferred upon it by the Member States in the Treaties ”. 46 This means that the principle of conferral, which is governed by the principles of subsidiarity and proportionality, also applies to the EU institutions, including the CJEU. 47 Although this has never been the preferred solution, only time will tell whether it is necessary or not for the fulfilment of the 3 rd requirement of the CJEU. 48 With regard to the 4 th requirement of the CJEU the original problem was that the ECHR obliges the High Contracting Parties to verify in cross-border cases whether other states respect the fundamental rights enshrined in the ECHR. On the other hand, the concept of Mutual trust between EU Member States is based on the presumption that human rights are respected throughout the EU. 49 As a solution to this problem, the Draft revised Agreement basically just states, that the principle of mutual trust within the EU should not be affected by the accession of the EU to the ECHR. 50 The only condition is that the rights and freedoms enshrined in the ECHR are respected. The high level of protection of the fundamental rights in the EU should in itself ensure that this condition is met. 51 43 Ibid. For comparison see ŁAZOWSKI, A., & WESSEL, R. A. (2015). When Caveats Turn into Locks: Opinion 2/13 on Accession of the European Union to the ECHR . German Law Journal, vol. 16, no. 1, pp. 202–203, cited: [2024-02-08]. Available at: https://doi.org/10.1017/S2071832200019477. See also JOHANSEN, S.O., ULFSTEIN, G., FØLLESDAL, A. & WESSEL, R. A. (2024). The Revised Draft Agreement on the Accession of the EU to the ECHR: Third Time’s a Charm? European Papers - A Journal on Law and Integration, vol. 9, no. 2, pp. 645–646, cited: [2025-02-18]. Available at: https:// doi.org/10.15166/2499-8249/774. 44 Ibid. 45 CJEU’s jurisdiction in the CFSP matters is limited to the review and interpretation of the decisions concerning restrictive measures. 46 Art. 5 (1) 1 st sentence and Art. (2) 1 st sentence TEU. 47 Art. 5 (3), (4) TEU. 48 According to some scholars, it seems unlikely that the European treaties will be amended. See for instance CHABLAIS, A. EU Accession to the ECHR: The Non-EU Member State Perspective , p. 725. 49 DOUGLAS-SCOTT, S. Opinion 2/13 on EU accession to the ECHR: a Christmas bombshell from the European Court of Justice . VerfBlog, 2014/12/24, point 1 a) para. 3, cited: [2024-02-09]. Available at: https:// verfassungsblog.de/opinion-213-eu-accession-echr-christmas-bombshell-european-court-justice-2/. 50 Art. 6 of the RA. 51 For comparisson see BUCKESFELD, J & WESSEL, R.A. The Effect of Opinion 1/17 on the EU-ECHR Draft Accession Agreement: Lessons Learned? pp. 780-781.

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