HUMAN RIGHTS IN THE EUROPEAN CONSTITUTIONAL ORDER

ECHR and since the ECtHR does not have jurisdiction to directly review the EU law, this could lead to a renewed application of the Bosphorus doctrine. 58 2.5 EU Participation in the Supervisory Bodies of the ECHR The Draft revised Agreement contains an amended Art. 7, which enshrines the participation of a delegation of the Parliament (EU), with the possibility of election, in the session of the Parliamentary Assembly of the Council of Europe, dealing with the election of judges to the ECHR. 59 It also entitles the EU to participate in certain meetings of Committee of Ministers, with the right to vote, 60 and stipulates that certain instruments or texts (listed in Art. 8(3) the RA) must be consulted with the EU before the adoption. 61 The Draft revised Agreement also contains safeguards against the adverse effect of the exercise of the right to vote by the European Union and its Member States on the Committee of Ministers’ supervisory functions under Articles 39 and 46 of the Convention 62 and introduces a different method of calculating the majority for the purposes of Art. 46 paras. 3 and 4 of the ECHR in cases where the EU is a party. 63 These small adjustments to the original Draft agreement should allow the EU a sufficient participation in the supervisory bodies of the ECHR without negatively affecting the functioning of these bodies. I can’t help but agree with most of the scholars, that the 6 th requirement of the CJEU has so far been met. 64 Any further possible complications could be resolved “along the way” and should not prevent the EU from acceding to the ECHR. On the contrary some of the non-Member States of the EU that are signatories to the ECHR may not be in favour of the EU having any (and in my view not insignificant) influence on the decision-making process of the Committee of Ministers. 65 Whether this will be a problem remains to be seen, but it is not the subject of this article.

58 Ibid. 59 Art. 7, para. 1. of the RA.

60 Ibid, Art. 8, para 2. 61 Ibid, Art. 8, para 3. 62 Ibid, Art. 8, para. 4.

63 Those requirements shall be laid down in the Rules of the Committee of Ministers for the supervision of the execution of judgments and of the terms of friendly settlements. See Art. 8, para. 5 of the RA. 64 See for instance MEINICH, T. From Opinion 2/13 to the 2023 Draft Accession Agreement: The Chair’s Perspective , p. 593; and CHABLAIS, A. EU Accession to the ECHR: The Non-EU Member State Perspective , p. 726. 65 The most problematic in this regard used to be the Russian Federation, after its expulsion from the Council of Europe, it might be the Republic of Türkiye (the 2 nd biggest opponent of the EU accession to the ECHR).

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