¹ References to the CJEU in the following also refer, where appropriate, to its predecessor, the Court of Justice of the European Communities.Google Scholar

² Opinion Pursuant to Article 218(11) TFEU, CJEU Case C-2/13 (Dec. 18, 2014), http://curia.europa.eu/ [hereinafter Opinion 2/13].Google Scholar

³ Council of Europe, Draft Agreement on the Accession of the EU to the European Convention on Human Rights, Fifth Negotiation Meeting Between the CDDH Ad Hoc Negotiation Group & the Eur. Comm'n on the Accession of the Eur. Union to the Eur. Conv. on H.R. app. 1 (2013).Google Scholar

⁴ See Lock, Tobias, Walking on a Tightrope: The Draft Accession Agreement and the Autonomy of the EU Legal Order, 48 Common Mkt. L. Rev. 1025 (2011).Google Scholar

⁵ See, e.g., Lock, Tobias, Oops! We Did it Again – the CJEU's Opinion on EU Accession to the ECHR, Verfassungsblog (Dec. 18, 2014), http://www.verfassungsblog.de/en/oops-das-gutachten-des-eugh-zum-emrk-beitritt-der-eu/; Michl, Walther, Thou Shalt Have No Other Courts Before Me, Verfassungsblog (Dec. 23, 2014), http://www.verfassungsblog.de/en/thou-shalt-no-courts/; Stian Øby Johansen, Opinion 2/13: A Bag of Coal From the CJEU, Øby-kanalen (Jan. 10, 2015), https://obykanalen.wordpress.com/2015/01/10/opinion-213-a-bag-of-coal-from-the-cjeu/; O'Neill, Aidan, Opinion 2/13 on EU Accession to the ECHR: The CJEU as Humpty Dumpty, Eutopialaw (Dec. 18, 2014), http://eutopialaw.com/2014/12/18/opinion-213-on-eu-accession-to-the-echr-the-cjeu-as-humpty-dumpty/; Peers, Steve, 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.no/2014/12/the-cjeu-and-eus-accession-to-echr.html.Google Scholar

⁶ As evidenced by the many and diverse contributions concerning Opinion 2/13 in this issue of the German Law Journal.Google Scholar

⁷ The other four reasons being that (1) the Accession Agreement is liable adversely to affect the specific characteristics and the autonomy of EU law, (2) the Accession Agreement does not lay down arrangements for the operation of the co-respondent mechanism that enable the specific characteristics of Union law to be preserved, (3) the Accession Agreement does not lay down arrangements for the prior involvement of the CJEU that enable the specific characteristics of Union law to be preserved, and (4) the Accession Agreement fails to have regard to the specific characteristics of Union law with regard to the judicial review of conduct on part of the EU under in Common Foreign and Security Policy matters. See Opinion 2/13 para. 258.Google Scholar

⁸ Comm'n v. Ireland (MOX Plant), CJEU Case C-459/03, 2006 E.C.R. I-04635 [hereinafter MOX Plant].Google Scholar

⁹ European Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, 213 U.N.T.S. 222.Google Scholar

¹⁰ Consolidated Version of the Treaty on European Union, Oct. 26, 2012, 2012 O.J. (C 326) 13 [hereinafter TEU].Google Scholar

¹¹ Protocol No. 8 to the Treaty on European Union, Dec. 13 2007, 2012 O.J. (C 326) 273.Google Scholar

¹² Id. Google Scholar

¹³ Consolidated Version of the Treaty on the Functioning of the European Union art. 344, May 9, 2008, 2008 O.J. (C 115) 47 [hereinafter TFEU].Google Scholar

¹⁴ Opinion 2/13 at para. 202; MOX Plant at para. 169.Google Scholar

¹⁵ Opinion 2/13 at para. 201; see also the cases mentioned infra note 16.Google Scholar

¹⁶ Notable examples include: Opinion Pursuant to Article 228(1) of the Draft Agreement Establishing a European Laying-up Fund for Inland Waterway Vessels, CJEU Case C-1/76, 1977 E.C.R. 741; Opinion Pursuant to Article 228(1) of the Draft Agreement Between the Community and the Countries of the European Free Trade Association Relating to the Creation of the European Economic Area (I), CJEU Case C-1/91, 1991 E.C.R. I-06079; Opinion Pursuant to Article 228(1) of the Draft Agreement Between the Community and the Countries of the European Free Trade Association Relating to the Creation of the European Economic Area (II), CJEU Case C-1/92 1992 E.C.R I-02821; Opinion Pursuant to Article 300(6) of the Proposed Agreement Between the European Community and Non-Member States on the Establishment of a European Common Aviation Area, CJEU Case C-1/00, 2002 E.C.R. I-03493; Opinion Pursuant to Article 218(11) TFEU Draft Agreement, Creation of a Unified Patent Litigation System, CJEU Case C-1/09, 2011 E.C.R. I-01137.Google Scholar

¹⁷ See, e.g., Opinion Pursuant to Article 228(1) of the Draft Agreement Between the Community and the Countries of the European Free Trade Association Relating to the Creation of the European Economic Area (I), CJEU Case C-1/91, 1991 E.C.R. I-06079, para. 85; Opinion Pursuant to Article 218(11) TFEU Draft Agreement, Creation of a Unified Patent Litigation System, CJEU Case C-1/09, 2011 E.C.R. I-01137, para. 63.Google Scholar

¹⁸ Opinion 2/13 at paras. 201–14.Google Scholar

¹⁹ Schrijver, Nico, The MOX Plant Case – A Litigation Saga Without a Pronouncement on the Merits, in The MOX Plant Case (Ireland v. United Kingdom): Record of the Proceedings 2001-2008 1–18, 2 (Permanent Court of Arbitration ed., 2010).Google Scholar

²⁰ Id.; MOX Plant at para. 21.Google Scholar

²¹ Schrijver, , supra note 19, at 2.Google Scholar

²² Id. at 2–3; MOX Plant at paras. 30–48.Google Scholar

²³ Convention for the Protection of the Marine Environment of the North-East Atlantic, Sept. 22, 1992, 32 I.L.M. 1069.Google Scholar

²⁴ United Nations Convention on the Law of the Sea, Dec. 10, 1982, 1833 U.N.T.S. 3 [hereinafter UNCLOS].Google Scholar

²⁵ Schrijver, , supra note 19, at 10; MOX Plant at paras. 53–54.Google Scholar

²⁶ MOX Plant at paras. 55–57.Google Scholar

²⁷ Id. at para. 184.Google Scholar

²⁸ Opinion 2/13 at paras. 201–14.Google Scholar

²⁹ Id. at para. 201.Google Scholar

³⁰ Id. Google Scholar

³¹ Id. at para. 203.Google Scholar

³² MOX Plant at para. 123.Google Scholar

³³ Opinion 2/13 at para. 205 (emphasis added).Google Scholar

³⁴ MOX Plant at paras. 124–25 (emphasis added).Google Scholar

³⁵ Repeated by the CJEU in MOX Plant at para. 132.Google Scholar

³⁶ MOX Plant at para. 128.Google Scholar

³⁷ It might even be argued that neither UNCLOS Article 282 fulfills this requirement, as the final subclause of that article provides that forms of dispute resolution other than those laid down in its Part XV shall be used only “unless the parties to the dispute otherwise agree.” It is thus possible for two member states to together submit a case concerning both Union law and the UNCLOS to a dispute resolution mechanism established under UNCLOS Part XV. This would of course entail a breach of Union law, notably TFEU Article 344 and TEU article 4(3), but that would not preclude the jurisdiction of the chosen Part XV dispute resolution mechanism.Google Scholar

³⁸ Following accession there would potentially be such a conflict between ECHR Article 55 and TFEU Article 344. However, this conflict is solved by Article 5 of the Accession Agreement, supra, note 3, which vacates the obligation under ECHR Article 55. It provides that proceedings before the CJEU “shall be understood as constituting neither procedures of international investigation or settlement within the meaning of Article 35, paragraph 2.b of the [ECHR], nor means of dispute settlement within the meaning of Article 55 of the [ECHR].” See also Opinion 2/13 at paras. 206–07.Google Scholar

³⁹ Opinion 2/13 at para. 208 (emphasis added).Google Scholar

⁴⁰ Id. at para. 212.Google Scholar

⁴¹ Id. at para. 213.Google Scholar

⁴² This is not only a departure from the CJEU's earlier case-law, as just demonstrated, but also in clear contrast to the views of the General Advocate. See View of Advocate General Kokott at paras. 107–20, Opinion Procedure 2/13, CJEU Case C-2/13 (June 13, 2014), http://curia.europa.eu/.Google Scholar

⁴³ Opinion 2/13 at para. 258.Google Scholar

⁴⁴ See supra note 7 and accompanying text.Google Scholar

⁴⁵ See Protocol No. 8 to the Treaty on European Union, Dec. 13 2007, 2012 O.J. (C 326) 273.Google Scholar

⁴⁶ See Convention for the Protection of the Marine Environment of the North-East Atlantic, Sept. 22, 1992, 32 I.L.M. 1069.Google Scholar

⁴⁷ Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, Jun. 25, 1998, 2162 U.N.T.S. 447. Article 16 contains an opt-in clause for compulsory dispute resolution, with the choice of either the ICJ or arbitration as the forum. Some EU member states have opted in.Google Scholar

⁴⁸ Convention on the Transboundary Effects of Industrial Accidents, Mar. 17, 1992, 2105 U.N.T.S. 457. Article 21 contains an opt-in clause for compulsory dispute resolution, with the choice of either the ICJ or arbitration as the forum. Some EU member states have opted in.Google Scholar

⁴⁹ Customs Convention on the International Transport of Goods Under Cover of TIR Carnets, Nov. 14, 1975, 1079 U.N.T.S. 89. Article 57 contains a compulsory arbitration clause, albeit allowing for reservations. Many EU member states, though, are parties without reservations as to arbitration.Google Scholar

⁵⁰ United Nations Convention against Transnational Organized Crime, Sept. 29, 2003, 2225 U.N.T.S. 209. Article 35 contains a compulsory dispute resolution clause, with the choice of either the ICJ or arbitration as the forum. Reservations against this clause are allowed, but several EU member states are parties without reservation. The UNCLOS might also serve as an example. See supra note 38 and accompanying text.Google Scholar

⁵¹ View of Advocate General Kokott, supra note 42, at para. 117 (emphasis added).Google Scholar

⁵² This follows from customary international law, as codified in the Vienna Convention on the Law of Treaties Between States and International Organizations or Between International Organizations, UN Doc. A/CONF.129/15 art. 46 (Mar. 21, 1986) (not in force). See also European Parliament v. Council and Comm'n (Passenger Name Records), CJEU Joined Cases C-317/04 and C-318/04, 2006 E.C.R. I-04721, para. 73.Google Scholar

⁵³ See European Parliament v. Council and Comm'n (Passenger Name Records), CJEU Joined Cases C-317/04 and C-318/04, 2006 E.C.R. I-04721, paras. 71–74.Google Scholar

⁵⁴ Peers (supra note 5) argues that accession is not desirable under the conditions of Opinion 2/13. Besslink suggests that amending the constituent treaties of the Union would be the preferred solution. See Leonard F. M. Besslink, Acceding to the ECHR Notwithstanding the Court of Justice Opinion 2/13, Verfassungsblog (Dec. 23, 2014), http://www.verfassungsblog.de/en/acceding-echr-notwithstanding-court-justice-opinion-213/.Google Scholar

⁵⁵ Opinion 2/13 at para. 213.Google Scholar

⁵⁶ For an overview of this practice, and a typology of “disconnection clauses”, see Kamala Dawar, Disconnection Clauses: An Inevitable Symptom of Regionalism? (Online Proceedings of the Society of International Economic Law Working Paper No. 2010/11, 2010), http://papers.ssrn.com/abstract=1632433.Google Scholar