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The EU's Accession to the ECHR: The Dream Becomes a Nightmare

  • Steve Peers
Extract

Just before Christmas 2014, the Court of Justice of the European Union (CJEU or the Court) gave its long-awaited ruling on the European Union's accession to the European Convention on Human Rights (ECHR). This ruling, Opinion 2/13, is a complex judgment that raises many legal questions. This case comment sets out: A summary of the ruling; an assessment of the consequences of the ruling; and an initial critique of the Court's reasoning. On the latter point, the Court's ruling is fundamentally flawed. In short, the Court is seeking to protect the basic elements of EU law by disregarding the fundamental values upon which the Union was founded.

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1 Opinion Pursuant to Article 218(11) TFEU, CJEU Case C-2/13 (Dec. 18, 2014), http://curia.europa.eu/ [hereinafter Opinion 2/13]; European Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, 213 U.N.T.S. 222 [hereinafter ECHR].

2 This comment is based upon my blog post: Steve Peers, The CJEU and the EU's Accession to the ECHR: A Clear and Present Danger to Human Rights Protection, EU Law Analysis (Dec. 18, 2014), http://eulawanalysis.blogspot.co.uk/2014/12/the-cjeu-and-eus-accession-to-echr.html.

3 Opinion Pursuant to Article 228 EC Treaty, CJEU Case C-2/94, 1996 E.C.R. I-1759.

4 Consolidated Version of the Treaty on European Union art. 6(2), Oct. 26, 2012, 2012 O.J. (C 326) 13 [hereinafter TEU].

5 Protocol No. 8 Relating to Art. 6(2) TEU on the Accession of the Union to the European Convention on the Protection of Human Rights and Fundamental Freedoms, Oct. 26, 2012, 2012 O.J. (C 326) [hereinafter Protocol No. 8]; TEU art. 1.

6 TEU art. 1.

7 Protocol No. 8; TEU art. 2.

8 Protocol No. 8; TEU art. 3; TEU art. 344.

9 TEU art. 6(2).

10 For the text, see Accession of the European Union to the European Convention on Human Rights, Council of Europe, http://www.coe.int/t/dghl/standardsetting/hrpolicy/Accession/default_en.asp (last visited Mar. 8, 2015).

11 Opinion 2/13 at paras. 144–52.

12 Id. at para. 71.

13 Id. at paras. 153–77.

14 Id. at para. 156.

15 Id. at para. 158.

16 Id. at para. 167.

17 Id. at paras. 179–200.

18 Melloni v. Ministerio Fiscal, CJEU Case C-399/11, paras. 60–61, 63 (Feb. 26, 2013), http://curia.europa.eu.

19 Opinion 2/13 at para. 191.

20 See Protocol No. 16 to the Convention on the Protection of Human Rights and Fundamental Freedoms, Oct. 2, 2013, C.E.T.S. No. 214 [hereinafter Protocol No. 16]. The Protocol was opened for signature in 2013 and will enter into force after ten ratifications. So far it has been signed by sixteen States, including nine Member States, but no State has ratified it.

21 Opinion 2/13 at paras. 201–14.

22 Id. at paras. 215–35.

23 Id. at paras. 236–38.

24 Id. at paras. 249–57.

25 See id.

26 ECHR art. 47.

27 ECHR art. 57.

28 TEU art. 6.

29 Consolidated Version of the Treaty on the Functioning of the European Union art. 265, May 9, 2008, 2008 O.J. (C 115) 47 [hereinafter TFEU].

30 See View of Advocate General Mengozzi, Segi and Others v. Council, CJEU Case C-355/04 (Feb. 27, 2007), 2007 E.C.R. I-1657.

31 Id.

32 Melloni, CJEU Case C-399/11.

33 Tarakhel v. Switzerland, ECHR App. No. 29217/12 (Nov. 4, 2014), http://hudoc.echr.coe.int/.

34 Abdullahi v. Bundesasylamt, CJEU Case C-394/12 (Dec. 10, 2013), http://curia.europa.eu/.

35 TEU art. 2.

36 Article 344 TFEU only rules out awarding jurisdiction to non-EU courts as regards matters over which the CJEU has jurisdiction. An a contrario interpretation obviously suggests that this is possible where the CJEU does not have any jurisdiction. TFEU art. 344.

37 TEU art. 2.

38 TFEU art. 67(1).

39 TEU art. 6.

40 Id. art. 7.

41 Id. art. 2.

42 Id. art. 48.

43 Id. art. 21.

44 TFEU art. 67.

45 TFEU art. 82.

46 Protocol No. 8.

47 Id.

48 Id.

* Professor of Law, University of Essex School of Law. I am grateful to the other speakers and audience members at a University of Cambridge seminar on February 4, 2015 for discussion of the CJEU's opinion. The usual disclaimer applies.

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