HUMAN RIGHTS IN THE EUROPEAN CONSTITUTIONAL ORDER

Conclusion In this article my task has been to evaluate the Draft revised Agreement in light of the Opinion 2/13 of the CJEU. I have come to the conclusion that some of the proposed solutions to the shortcomings of the original Draft agreement, identified in Opinion 2/13 of the CJEU, are likely to satisfy the CJEU’s requirements, while others may not. For example, while most of the shortcomings related to the Prior Involvement Mechanism seem to have been finally resolved, the issue of judicial review in CFSP matters remains a major shortcoming of the Accession Agreement even after its revision. 66 There are also a number of other smaller unresolved issues, such as clarifying whether or not the privilege arising from the Bosphorus case will apply after EU accession to the ECHR; 67 the status of the Accession Agreement in the EU legal order; or the lack of more specific regulation of the mechanisms necessary to ensure that complaints by non-Member States and by individuals against Member States and the EU are properly addressed. 68 According to the Draft revised Agreement, the wrong addressing of the complaint can only be corrected by the Co-respondent Mechanism. Although I am rather optimistic about the EU’s accession to the ECHR, I am not sure that it will be possible on the basis of the Draft revised Agreement. For all the above-mentioned reasons, I can’t agree with the conclusion of the negotiation group, that the Draft revised Agreement meets all of the criteria set out in Opinion 2/13 of the CJEU. 69 In my view some of the remaining unresolved or semi-resolved issues could stand in the way of EU accession to the ECHR. However, this decision is not mine – it is in the hands of the judges of the CJEU. Only they are entitled to assess the compatibility of the Draft revised Agreement with EU primary law and to decide whether it is possible for the EU to accede to the ECHR on its basis. 66 For comparisson see GRAGL, P. (2024). The New Draft Agreement on the EU Accession to the ECHR: Overcoming Luxembourg’s Threshold. European Convention on Human Rights Law Review (published online ahead of print 2024), pp. 1–26, cited: [2025-02-19]. Available at: https://doi.org/10.1163/26663236 bja10099. 67 With regard to the question of the application of the Bosphorus doctrine after the accession of the EU to the ECHR, see, inter alia , 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. 764–765. 68 Art.1 (b) of the Protocol No. 8. According to the Draft revised Agreement, the wrong addressing of the complaint can be corrected only by the Co-respondent Mechanism. Draft explanatory report to the RA, point 49. 69 For comparisson see CHABLAIS, A. EU Accession to the ECHR: The Non-EU Member State Perspective , pp. 727–728.

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