K U L E U V E N

L L . M . i n I n t e r n a t i o n a l a n d E u r o p e a n P u b l i c L a w

I n t e r n a t i o n a l L a w f r o m a E u r o p e a n P e r s p e c t i v e

THE ACCESSION OF THE EUROPEAN

UNION TO THE EUROPEAN

CONVENTION ON HUMAN RIGHTS

ELEFTHERIOS GEORGIADIS

Leuven, January 2016

Table of Contents

I. Historical Review...........................................................................................................................................................1

II. Overcoming the pitfall of Opinion 2/13............................................................................................................3

A. Autonomy of EU law.................................................................................................................................................... 3

B. European Court's jurisdiction over CFSP decisions....................................................................................7

C. The co-respondent mechanism..............................................................................................................................7

D. The prior involvement of the CJEU......................................................................................................................9

III. But why accede?...................................................................................................................................................... 12

IV. Post-accession: International law from a European perspective...............................................13

A. The principle of EU loyalty....................................................................................................................................13

B. The presumption of equivalence and the future of the Strasbourg Court...................................14

C. The role of the EU in the international legal order..................................................................................15

V. Interim Conclusions...................................................................................................................................................16

Bibliography.............................................................................................................................................................................17

i

Abstract

From the Greco-Roman concept of natural law and the Magna Charta to modern international

instruments, human rights have played a central role in European legal thought. Yet human rights

guarantees in the old continent are still fragmented,1 a fact illustrated through the negative CJEU

opinion on the accession of the EU to the European Convention for the Protection of Human and

Fundamental Rights.2 The aim of this paper is to rebut the reasoning of the Luxembourg Court in its

opinion delivered last December. In doing so, the potential threat to the autonomy of EU law, the

nature of CFSP provisions, the co-respondent mechanism as well as the prior involvement of the

CJEU will be addressed. By providing counterarguments, we deduce that a stricter application of the

principle of good faith in negotiations, combined with only a few amendments to the relevant

Agreement, will be able to revive the accession procedure. Furthermore, theoretical and

methodological points in favor of the EU becoming a party to the ECHR are expounded. Finally, we

examine the effects which those developments would have on the interplay of international and

European law. We, thence, conclude that, by joining the Council of Europe, the European Union will

take the first major step in reconsidering its role within the international sphere as well as in

offering its advanced judicial architecture to international law.

I. Historical Review

The origins and purposes of the European Union (EU) as an international organization were

completely different from those of the Council of Europe (CoE) upon their establishment. The

European Economic Community (EEC), now absorbed by the EU, used to be an exclusively

economic cooperation between sovereign states. As such, it lacked any reference to fundamental

rights and freedoms whatsoever. It wasn't until 1969, when EEC commitment to human rights

protection was confirmed for the first time in the Stauder case3. Under the reasoning of the then

European Court of Justice (ECJ), constitutional traditions common to the member states were, in

fact, a source of European law with regard to individual rights. Α few years later, international

treaties on human rights followed suit. 4 Nevertheless, their importance proved to be short-lived:

1 Lemmens, P. (2013). International and European Human Rights Law. Leuven: Acco.2 Opinion 2/13 pursuant to Article 218(11) TFEU - Draft international agreement - Accession of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms - Compatibility of the draft agreement with the EU and FEU Treaties, available from: http://curia.europa.eu/juris/liste.jsf?td=ALL&language=en&jur=C,T,F&num=2/13.3 Stauder v City of Ulm (Case 29/69) 1969, available from: http://www.eulaws.eu/?p=171.4 J. Nold, Kohlen- und Baustoffgroßhandlung v Commission of the European Communities (Case 4-73), available from: http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A61973CJ0004.

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by 1989, the European Convention for the Protection of Human and Fundamental Rights (ECHR

or Convention) had emerged as the dominant source of fundamental rights protection in the

EEC,5 as described in the European Single Act (1986)6 and the Treaty of Maastricht (1992).7

Numerous rulings in Luxembourg were invoking Convention articles to base their operative part

on, even interpreted in accordance with the Strasbourg jurisprudence. Consequently, the

dialogue between the two Courts has been long-standing and significant.

Soon after the fall of the Iron Curtain, the newly-founded EU made its first attempt to become

a member to the ECHR, which were swiftly rejected by the ECJ in Opinion 2/94. The principal

argument against accession was lack of a relevant Union competence set down in primary law.

In light of this legal lacuna, the Treaty of Lisbon (2009) finally granted this right and obligation

to Brussels.8 At the same time, however, the Charter of Fundamental Rights (ChFR) became

binding with a status equal to that of the Treaties.9 Diverging viewpoints on these developments

have been inevitable: while viewed as facilitating the convergence of the Court of Justice of the

EU (CJEU) and the European Court of Human Rights (ECtHR or Court), an increasing number of

scholars, lawyers and judges have been speaking of "a new rival for the Convention".10

Either way, it is without doubt that the negative CJEU Opinion, delivered in December 2014,

severely obstructs any future effort to implement article 6.2 TEU. Still, the following chapter of

the paper will argue that the aforementioned judgment is more formalistic than it needs to be

given the present circumstances. Further concerns claiming that the EU will not benefit from

joining the CoE will be dispelled in Section III. Chapter IV will analyze the ramifications of such a

move by Brussels on the application of the principles of good faith and subsidiarity. Finally, the

paper will summarize and uphold the positive attitude towards the accession of the EU to the

ECHR.

5 Stagkos, P. (2004). Η δικαστική προστασία των θεμελιωδών δικαιωμάτων στην Κοινοτική έννομη τάξη (in Greek). Athens and Thessaloniki: Sakkoulas.

6 The European Single Act was, notably, the first legal instrument explicitly referring to human rights protection in the then EC.7 The very wording of the current article 6.3 TEU dates back to the Treaty of Maastricht. 8 Article 6.2 TEU and Protocol no. 18 concerning EU accession to the ECHR.9 The Charter of Fundamental Rights was proclaimed by the Parliament, the Council of Ministers and the Commission on 7 December 2000. It was drafted in the context of the European Convention, but did not have full legal effect until the entry into force of the Lisbon Treaty.10 Popelier, P., Van de Heyning, C., and Van Nuffel, P. (2011). Human rights protection in the European legal order: The interaction between the European and the national courts . Cambridge, Antwerp and Portland: Intersentia.

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II. Overcoming the pitfall of Opinion 2/13

If participation in the Convention is to be taken seriously, it is indispensable that last year's

findings of an alleged incompatibility between the Accession Agreement and EU law are

overcome. In refuting the reasoning of the CJEU, alternative interpretations to various provisions

of the Treaties as well as the Draft Agreement will be given. We are going to prove that the

already existing framework does not pose any danger to the special characteristics of the

European legal order. This is, also, supported by the majority of the available literature on the

issue. Our counterarguments will be organized into four "pillars": autonomy of EU law, Common

Foreign And Security Policy (CFSP), co-respondent mechanism, and prior involvement of the

Luxembourg Court in the proceedings before the ECtHR.

A. Autonomy of EU law

According to the principle of autonomy, which is well-established case law stemming from

the van Gend en Loos11 judgment, the EU is a distinct and separate system within "traditional"

international law. This highly dualistic approach12 forms the bulk of the criticism of a future EU

accession to the ECHR. It is important to note, though, that, since the law of the CoE consists of

nothing more than safeguards for individual rights and freedoms, EU autonomy could be

jeopardized only in this specific domain. Moreover, the legal community unanimously agrees

that autonomy could be at stake only when institutional organs or member states will be

applying EU law13 and will be, therefore, bound by both the Charter and the Convention

simultaneously.14 As a result, the analysis under this sub-chapter will focus on the

interrelationship between the ChFR and the ECHR, in line with previous bibliography. Aside

from this substantive matter, the objectionable scenario of the Strasbourg Court interpreting EU

fundamental rights law will be accounted for.

It is evident throughout the historical overview that the ECHR constitutes the provenance of

human rights protection in the Union context. Before the Treaty of Lisbon, Luxembourg

decisions had been appropriating Convention rules and respective jurisprudence via general

11 NV Algemene Transport- en Expeditie Onderneming van Gend & Loos v Netherlands Inland Revenue Administration.  Reference for a preliminary ruling: Tariefcommissie - Netherlands, available from: http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A61962CJ0026.12 Roucounas, E. (2015). Δημόσιο Διεθνές Δίκαιο (in Greek). Athens, Thessaloniki and Patras: Nomiki Vivliothiki.13 Gragl, P. (2013). The accession of the European Union to the European Convention on Human Rights . Oxford and Portland, Oregon: Hart Publishing.14See also article 51 ChFR.

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principles of EU law as well as, in our standpoint, common constitutional traditions amongst

member states. In fact, adherence to the ECHR had become a prerequisite for all countries

wishing to join the organization.15 Nonetheless, it is strongly maintained that the outcome of this

procedure was always a different, "transformed" rule.16

Recent developments weaken the plausibility of this position. A careful look at the content of

the ChFR is enough to persuade anyone that it merely repeats all ECHR provisions, 17 18 while

adding a few more (mainly in the areas of labor rights, expulsions, criminal law and citizens'

rights). In addition, the combination of articles 52.3a+53 of the Charter leads to the conclusion

that an interpretation of ChFR rights and legal terms in conformity with ECHR rules referring to

the exact same (or largely similar) standard event and protecting identical rights is mandatory.19

Subsequently, the minimum protection doctrine enacted in articles 52.3b+53 ChFR and 53 ECHR,

expressis verbis sets the Convention as the floor, permitting detachment only in cases of higher

protection affordability.

It is dubious if the above wordings "deify" EU autonomy.20 To us, it is rather the opposite:

Primary law specifically allows derogations from itself in the field of fundamental rights, as long

as the ECHR provides for major protection (a) of the same right (b). Autonomy has to be

observed under the scope of the pacta sunt servanda principle and its codified limitations.

Another emerging issue touches the concept of mutual trust. More precisely, the spirit of

collaboration envisioned by the EU maintains that all member states take for granted that their

partners respect EU law, including the ChFR. This contradicts the approach of the Convention,

the contracting parties of which are urged to check each other's compliance with their duties

under international human rights law, especially in the context of their positive obligations. 21 As

an alleviation, though, extraordinary circumstances, which consist the basis for deviations from

this axiom of mutual trust, have been fleshed out in EU case law.

15 See the Copenhagen criteria, introduced in the Treaty of Maastricht (article 49).16 Gragl, P. (2013). The accession of the European Union to the European Convention on Human Rights . Oxford and Portland, Oregon: Hart Publishing, 102.17 Plus some that are to be found in the optional protocols attached to it, to which the EU does not plan to accede.18 See also Callewaert, J. (2014). The accession of the European Union to the European Convention on Human Rights. Strasbourg: Council of Europe Publishing.19 It can, thus, be asserted that the ECHR already forms part of primary EU law in an indirect way.20 As pointed out in Callewaert, J. (2014). The accession of the European Union to the European Convention on Human Rights. Strasbourg: Council of Europe Publishing.21 Lemmens, P. (2013). International and European Human Rights Law. Leuven: Acco.

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As verified in numerous cases dealing with child custody, expulsions and extraditions,22 the

conflict between mutual trust and compliance test is prevalent in the Area of Freedom, Security

and Justice (AFSJ), a quite useful branch of EU law.23 Therefore, a fair balance needs to be struck

between them.

A rather extreme proposition would be to declare mutual trust a "dead letter". After all, the

ECtHR already holds that an EU state is in breach of substantive positive obligations undertaken

under the Convention system whenever it chooses to subordinate the compliance check to the

principle of mutual trust.24 If that is not possible, then it is perhaps the time for the CJEU to

accept a broader interpretation of the extraordinary circumstances mentioned above.25

A more pragmatic and still on the table suggestion is to include "disconnection clauses" in a

future draft of the Accession Agreement. These clauses will tolerate devotion to mutual trust by

national courts of EU countries (and even the CJEU) when they are called to expulse/extradite

non-nationals to another member state, or recognize judgments delivered by courts of another

member state. Thusly, the ECtHR will only convict the signatory party, in the territory of which

alone the violation of one or more ECHR provisions takes place.26 27

Nevertheless, disconnection clauses go against the very target of the Council of Europe for

effective and high-level human rights protection in the continent, so they have slight chances of

being accepted. As a consequence, we believe that the introduction of a post-accession

rebuttable presumption in the field of the AFSJ is necessary. Endowed on EU member states and

the EU itself only, it will allow the Union, or one of its 28 participants, to presume that another

member state, which has tackled issues or delivered a judgment on AFSJ matters, has respected

fundamental rights. Unless sufficient evidence points to the opposite, the "requested state"28 will

uphold the presumption, without the Strasbourg Court being entitled to find that it has violated

22 See among others, the Sneersone and Kampanella vs. Italy, as well as the M.S.S. vs. Belgium and Greece rulings.23 European family, refugee/migrant and criminal law are in the limelight of the scope of mutual trust. 24 In these instances, what the Court does is to refuse to apply the "Bosphorus doctrine" (or "presumption of equivalent protection"). For more information about this presumption, see Section II.D. below.25 Reitemeyer, S. and Pirker, B. (2015). Opinion 2/13 of the Court of Justice on access of the EU to the ECHR-one step ahead and two steps back (originally in German), Jusletter.26 Kornezov, A. (2012). The Area of Freedom, Security and Justice in the Light of the EU Accession to the ECHR-Is the Break-up Inevitable? Cambridge Yearbook of European Legal Studies, 15(1), 227-254.27 In the case against Belgium and Greece, for example, only Greece would have been condemned by the ECtHR, while the refoulement of the applicant to Athens would still have been declared as contrary to the Convention.28 This is how the state, before which the issue of whether or not another EU member state has complied with fundamental rights and freedoms when giving judgments or accepting non-nationals (e.g. refugees or extradited convicts), is referred to.

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the Convention. The "issuing state"29 will be the one subject to "a full human rights scrutiny"

instead.30

As for the procedural aspect of the autonomy discussion, we believe that the exclusive

jurisdiction of the CJEU on EU law matters is, too, not in peril. Said speculations arose on the

occasion of advisory opinions and inter-party cases. In particular, advisory opinions would

probably mean that the Court could authentically interpret the ECHR as part of EU law, thus

encroaching on the jurisdiction of the Luxembourg Court, while inter-party cases would,

allegedly, encourage EU countries to overlook their commitments under article 344 TFEU.

In general, advisory opinions are a Court's exercise of its power to authentically give

meaning to a certain written instrument.31 Even so, the EU does not intend to sign Protocol 16 on

advisory opinions, which, exceptionally, happen to be non-binding.32 Furthermore, Article 5 of

the Draft Accession Agreement already contains a special agreement explicitly referring to the

Convention, satisfying the requirements of Article 55 ECHR for exemption of EU-related inter-

party applications.33 No additional action needs to be taken on behalf of the Union. Articles

258+344 TFEU are more suitable to prevent submissions of EU-related disputes to international

litigation bodies, other than the CJEU.34 To sum up, the arguments of Opinion 2/13 as regards

the undermining of Luxembourg's judicial autonomy lack foundation.

B. European Court's jurisdiction over CFSP decisions

Unlike the rest of EU legislation, the CJEU cannot deliver judgments on CFSP decisions, save

for division of competences and restrictive measures.35 Also, these acts are mainly of a

political/international relations character, reflecting different national policies and interests.

How can EU states accept a review of such sensitive choices by an external Court, when the

“internal” CJEU is prohibited from doing so?36

29 This is how the state, which has delivered a judgment on AFSJ matters, or is accepting migrants, refugees or extradited convicts, is referred to.30 Kornezov, A. (2012). The Area of Freedom, Security and Justice in the Light of the EU Accession to the ECHR-Is the Break-up Inevitable? Cambridge Yearbook of European Legal Studies, 15(1), 227-254.31 Topf, M. (2011). A doubtful and perilous experiment. New York: Oxford University Press.32 See article 5 of Protocol no. 16 to the ECHR.33 Gragl, P. (2013). The accession of the European Union to the European Convention on Human Rights . Oxford and Portland, Oregon: Hart Publishing, 271.34 See also the MOX Plant vs. Ireland case before the ECJ.35 See articles 24.1b TEU and 275 TFEU.36 At this point, it is important to note that in the CFSP it is the national courts that have substituted the CJEU: see Bosphorus vs. United Kingdom case.

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The EU does not have exclusive competence in the sphere of CFSP. When no Council

unanimity is achieved, national administrations can act on their own and even adopt the exact

same failed measure in their own legal orders. Meanwhile, domestic legislation and court

decisions of EU member states continue to be bound, on their own, by the ECHR, even if violation

stems from a governmental act.3738 Thus, decisions contextual to the field of CFSP are already

examined by the European Court if taken by national governments outside the framework of the

Council of Ministers. Consequently, they should also be examined a fortiori by the same Court

when decided upon by the Council of Ministers. Otherwise, the EU will form a "safe haven" for

human rights responsibility evasion, in stark incongruity with its principles and commitments.39

Besides, ECtHR judges are independent, transparently elected and do not represent their

country of origin.40

In the end, a special Agreement (i.e. Protocol) between the EU and the CoE for objective

judicial review, along with respect for the de minimis41 principle and the precept of effectiveness,

would be preferable, so that the Common Foreign and Security Policy will not be rendered non-

operational by the annulment of an excessive number of decisions.

C. The co-respondent mechanism

Implementing article 1b of Protocol 8 to the EU Treaties, the proposed co-respondent

mechanism is a tool to ensure that a complaint before the ECtHR is directed against the correct

recipient (Union member state (s) only, EU only, or both).42 Nevertheless, the EU will still get to

decide which party will be held responsible for the violation: the ECtHR will deliver the

judgment, but EU law (and the CJEU in case of a dispute) will have the final word on who gets to

execute it, in harmony with division of competences.43 In this way, the situation where a country

is found in a deadlock by having to abide by conflicting EU and ECHR provisions will be

resolved.44

37 A governmental act is usually the prefered national legal instrument to regulate matters of foreign policy.38 In a lot of European legal orders, governmental acts are not reviewed even by supreme courts. Dagtoglou, P. (2011). Διοικητικό Δικονομικό Δίκαιο (in Greek). Athens and Thessaloniki: Sakkoulas.39 See article 6.3 TEU.40 See article 21 ECHR.41 The de minimis principle is customary international law and is applied by courts so as to avoid the resolution of trivial matters that are not worth of judicial scrutiny.42 For more details on how the co-respondent mechanism is planned to work, see Delgado Casteleiro, A. (2014). United We Stand: The EU and its Member States in Strasbourg Court. In: Kosta, V., Skoutaris, N. and Tzevelekos, VS. (eds.) The EU accession to the ECHR. Oxford and Portland, Oregon: Hart Publishing, 105-120.43 See article 3.7a of the Draft Agreement for Accession.44 See Bosphorus vs. United Kingdom and Matthews vs. United Kingdom cases.

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The co-respondent mechanism is, probably, the most contested part of the Accession

Agreement. Α lot of authors have sided with Opinion 2/13 in attacking it. We will proceed with

the grievances of the former.

Firstly, we would like to quickly turn down the argument claiming that the co-respondent

mechanism hurts the status of reservations separately made by EU member states to the ECHR.

Article 3 of the Accession Agreement is not arranged to apply when a member state to the

Convention is not a respondent before the ECtHR.45 We are surprised that the CJEU

misunderstands elemental aspects of the negotiations.

Secondly, invitation by Strasbourg to become co-respondent or request of a party to

intervene as a co-respondent will, supposedly, induce the ECtHR to interpret EU law on division

of competences. It is obvious that procedural EU autonomy is indirectly invoked again.

The CJEU is once more erroneous in its assumptions, given that an invitation can be refused

in any event. Alternatively, it will be able to prompt an EU scrutiny on whether or not

accountability criteria would permit such an intervention. Also, in case of a request by an EU

member state or the EU, the Court will only examine the prima facie plausibility of the fulfillment

of the co-respondent requirements. Prima facie decision-making is far from a definitive ruling.

On the contrary, the very last point is of value: “if the European Court finds that only some of

the co-defendants are responsible for a breach, then it has –by necessity–ruled on division of

competences”.46 Under the current draft, the ECtHR is indeed entitled to dismiss proceedings for

the respondent, while convicting the co-respondent party, and vice versa. If the EU is to be kept

as the sole determiner of competence distribution, then an amendment is necessary.

Finally, a lot of criticism is placed on the voluntary character of the mechanism as well as the

ad hoc approach it follows in ascertaining liability.47 It is true that the EU could have facilitated

accession by having passed a regulation dealing with these issues in abstracto. Nonetheless, in

absence of such an internal act, the duty of sincere cooperation48 ought to be called upon. EU

loyalty is stricter than the principle of good faith in classical international law; even legal

45 Besides, if an EU and CoE member state has made a reservation to an ECHR provision, then the subject matter automatically falls outside EU law by nature, since it would, otherwise, require coordinated EU legislation and implementation, with which reservations made by individual EU member states are incompatible. 46 See art. 3.7b and also the relevant argumentation in Reitemeyer, S. and Pirker, B. (2015). Opinion 2/13 of the Court of Justice on access of the EU to the ECHR-one step ahead and two steps back (originally in German), Jusletter.47 See Delgado Casteleiro, A. (2014). United We Stand: The EU and its Member States in Strasbourg Court. In: Kosta, V., Skoutaris, N. and Tzevelekos, VS. (eds.) The EU accession to the ECHR. Oxford and Portland, Oregon: Hart Publishing, 117-120.48 See article 4.3 TEU.

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obligations may, at times, be deduced from it.49 Therefore, we tend to be quite well-disposed

towards its practical utilization.

To put it differently, the EU eventually has to write down how both the vertical and the

horizontal distribution of powers works in the areas of its conferred competences. In addition, it

could develop coordinated administrative practice in terms of whether or not, as well as when,

it should find recourse to the co-respondent mechanism. In this way, the very notion of sincere

cooperation will be enhanced, too.50

D. The prior involvement of the CJEU

Pursuant to the subsidiary nature of the ECHR, exhaustion of local remedies is a precondition

for admissibility of a filing before the Court.51 If the co-respondent mechanism is activated,

though, then only means of redress offered by the respondent are taken into consideration. 52

Provided that the respondent is an EU member state, but not the EU itself, preliminary rulings do

not count as internal remedies, because national tribunals are the ones authorized to request a

referral to Luxembourg.53 Individuals are not engaged at all and this is why a possible system

failure in the preliminary ruling function should not burden them.

Failure to refer a case translates into either a violation of article 267 TFEU or its

circumvention due to previously existing jurisprudence. In such instances, EU law is assessed by

the ECtHR without any anterior check by the CJEU. The prior involvement mechanism tries to fix

this shortcoming.54

The importance of this mechanism rose with the Bosphorus, Matthews and Michaud cases. The

presumption of equivalent protection bestowed on the EU includes, as an accountable factor, the

prior adjudication of the CJEU on a matter arising before the ECtHR.55 Respectively, no

49 De Baere, G., and Roes, T. (2015). EU loyalty as good faith. International and Comparative Law Quarterly, 64, pp 829-874.50 See Section IV.A below to find out in what terms sincere cooperation will be advanced.51 See article 35.1 ECHR.52 See article 3.1b Draft Accession Agreement.53 See article 267 TFEU.54 See article 3.6 Draft Accession Agreement.55 Equivalent protection doctrine: if a state complied, without acting on discretion, with obligations rising from its participation in an international organization (such as the European Union) and because of that interfered with rights of the ECHR, and if that organization provides protection “no manifestly deficient” compared to that of the ECHR, then the state is not convicted. Equivalence in protection includes both substantive (level of protection of Charter rights should be at least the same as that of the ECHR) and procedural aspects (prior CJEU involvement for every single merit and human rights issue of the case, proper functioning of the CJEU etc.). The EU is, generally, recognized by the Council of Europe as an "equal" human rights actor.

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preoccupation with the issue automatically deprives the EU from this privilege. To avoid that,

procedures before the European Court are scheduled to be suspended and the CJEU will be

notified to decide on the matter (interpretation of primary EU provision, only validity of

secondary EU provision).

On this note, Opinion 2/13 supports that the phrase "interpretation of secondary EU law"

should be incorporated in the Agreement, too. We uphold this finding, but we think that this

omission was not deliberate, but rather a "pars pro toto" wording. After all, validity check

sometimes, albeit not always, 56 entails interpretation.

Moreover, it points out that article 3.6 of the Agreement does not certify that the EU will be

"fully and systematically" informed about any case pending before the ECtHR, which would be

necessary to allow the competent institution to gauge whether or not the prior involvement

procedure had to be triggered. An EU organ has to determine beforehand if a particular legal

question has been appraised, otherwise there is a violation of article 274 TFEU and, yet again, a

threat to the independence of the EU judicial system.

Notwithstanding those sincere motives, this issue could also be resolved within the EU in the

shape of a more concrete framework compelling the respondent state to notify Brussels when

accused of a Convention infraction stemming from implementation of EU legislation.57

Last but not least, a specific structure has to be set up, through which the prior involvement

of the CJEU will be realized. By far the most popular proposal suggests to make use of article 267

TFEU in accelerated proceedings (PPU). A more contested idea even invokes article 263.

One would, arguably, wonder if introducing PPUs for reasons apart from those enumerated in

articles 104a+b of the CJEU Statute composes a hidden amendment to the Treaties. The answer

would be to the negative, because the PPU is recognized as a legitimate procedure in article 23a

of the Statute. Moreover, article 281 TFEU approves modifications to internal CJEU rules without

the need for primary law revisions. As a consequence, article 3.6 of the Agreement may provide

the basis for a readjustment of the PPU to the demands of accession to the ECHR.58

56 This is what the Opinion missed: regulations/directives/decisions/agreements may equitably indeed, yet less frequently in practice, be nullified on the basis of procedural flaws or abuse of power, which do not include EU law interpretation. See also article 263.2 TFEU.57 This would be once again an application of the principle of sincere cooperation between the Union and its member states.58 Gragl, P. (2013). The accession of the European Union to the European Convention on Human Rights . Oxford and Portland, Oregon: Hart Publishing, 247-249.

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Potential recourse to article 263 TFEU would be more perplexing.59 Its advantage is, of

course, resolution of the problem on a Union level by annulling the impugned act, so that the

ECtHR simply dismisses the case before it by declaring a friendly settlement or a confession.60

However, time limits set in paragraph 6 are a severe impediment for this theory. To make things

worse, the Luxembourg Court in TWD Textilwerke Deggendorf has extended them to preliminary

rulings, too. 61

Thankfully, article 277 TFEU eases the enforcement of this stiff limitation period for

annulment actions. Inasmuch as the majority of fundamental rights breaches by secondary EU

law are to be found in acts of general application, this exception largely "saves the day". As for

acts of individual application to natural and legal persons, the wording of article 263 TFEU can

be compromised with hyper-constitutional principles underlined in articles 2+6.3 TEU, such as

legality, rule of law and force majeure.62 In other words, time limits can be mitigated for

individually addressed acts in light of the prior involvement mechanism, grounded on the right

to an effective remedy.63 64

It should already be clear that we acknowledge the added value of the prior involvement

mechanism to the Accession Agreement. It seemingly slows down and complicates proceedings,

but depicts a smooth transition from state-centered to more federalized verdict-reaching levels,

which must not be distorted.65 On the other hand, the related literature is ambivalent.66 67

59 Naturally, article 263 TFEU would be used for secondary EU law. Implications arising from primary EU law provisions can be solved only by interpreting them in conformity with the ECHR or by striking a fair balance between human rights and the Treaties.60 Callewaert, J. (2014). The accession of the European Union to the European Convention on Human Rights . Strasbourg: Council of Europe Publishing.61 In Textilwerke Deggendorf, the CJEU ruled that, if time limits for the action of annulment have expired and the person affected by the act in question was notified of its adoption in due time, an indirect action for a preliminary ruling on the validity of that EU act is inadmissible.62 Prolonged procedures before the ECtHR should not result in the applicant missing the two-month limitation period.63 Gragl, P. (2013). The accession of the European Union to the European Convention on Human Rights . Oxford and Portland, Oregon: Hart Publishing, 243-247.64 The right to an effective remedy is part of primary EU law, enshrined in article 47 ChFR, and a manifestation of the principle of legality and the rule of law. 65 See Section III of the paper for the shift from national to broader international forms of human rights protection in Europe.66 For a more negative overview of the prior involvement mechanism, see Torres Perez, A. (2014). Too Many Voices? The Prior Involvement of the Court of Justice of the European Union. In: Kosta, V., Skoutaris, N. and Tzevelekos, VS. (eds.) The EU accession to the ECHR, Oxford and Portland, Oregon: Hart Publishing. 67 On the other hand, Lock, T. (2010). EU Accession to the ECHR: Implications for Judicial Review in Strasbourg, European Law Review 777 generally follows the position of the present paper.

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We, thence, close the section by supporting that the prior involvement mechanism should

take the form of preliminary rulings for primary law provisions that violate the ECHR,68 but the

form of objections of illegality or annulment actions for contraventions found in secondary EU

law.

III. But why accede?

The previous chapter of the paper refuted almost all barriers put by Opinion 2/13, aligning

itself with a creative and teleological reading of EU law. The topic of the discussion will now shift

towards philosophical and methodological arguments for an EU accession to the CoE.

A discrepancy in review of the same course of events between the CJEU and the ECtHR is the

skeptics' biggest fear. Yet, diverging perspectives and ideologies do not necessarily lead to a

clash. In reality, focusing exclusively on human rights, the ECHR is able to provide more

profound expertise in the field and stronger judicial guarantees. The EU, instead, is a much

broader organization rationae materiae having a lot to learn from Strasbourg in promoting

rights and freedoms. Besides, the CJEU, despite being centralized, remains part of the mere legal

order it evaluates, eventually favoring it over "regular" international law.69

Likewise, we do not share the view that, since the advent of the ChFR, the ECHR has become

more of a safety valve for non-EU countries with poor human rights records (e.g. Turkey, Russia,

rest of former Soviet or Yugoslav countries). On the contrary, we believe in a common, coherent

and clear "constitutional" legal order in the European continent catering for a minimum level of

protection of individual rights and freedoms. Such an achievement would be, definitely,

beneficial for neighboring legal families with considerable historical and cultural ties.

Lastly, as an equal member of the CoE, the EU will have access to the inter-party applications

of article 33 ECHR, ultimately behaving as an efficient human rights actor and fulfilling its aims

and principles regarding human rights protection laid down in articles 2, 3.6 and 24.1 TEU. This,

in turn, will not affect the Union's well-preserved autonomy,70 as article 344 TFEU does not

regulate disputes between the EU and third countries not participating in the organization.71 It

will rather enhance it by letting the EU make use to the fullest extent of its competence to

68 Preliminary rulings on the validity of primary EU law can be, exceptionally, declared admissible in cases where the measure of validity check is an ECHR and not a primary EU law provision.69 Callewaert, J. (2014). The accession of the European Union to the European Convention on Human Rights . Strasbourg: Council of Europe Publishing.70 See Chapter II.A. 71 This is an application of the pacta sunt servanda principle, from which autonomy of EU law has sprung.

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conclude international agreements.72 The right to ratify a Convention a fortiori encompasses the

right to pursue conformity with it as an applicant.73

IV. Post-accession: International law from a European perspective

Supposing the long-desired accession to the ECHR is achieved, how will this influence the

relationship between EU and classical international law? This section will study the question vis-

a-vis the principle of EU loyalty, the presumption of equivalence, the very future of the

Strasbourg Court and the role of the European Union in global developments.

A. The principle of EU loyalty

If the Council of Ministers actually follows the solutions proposed throughout the paper, then

it will be effectively encouraging EU institutions and bodies (CJEU, Commission, special

negotiating team) to take all possible positive measures (different interpretation of Agreement

provisions, proposals to the Agreement itself) to facilitate the successful conclusion of

agreements. This may, successively, lead to a stricter application of the principle of EU loyalty

sub spe rati: 74 during the stage prior to conclusion than ratification.

B. The presumption of equivalence and the future of the Strasbourg Court

After accession, the EU plans to be a full and equal member of the Council of Europe, wholly

bound by the ECHR articles as interpreted by the ECtHR. As a result, the presumption of

equivalence75 is expected to be abandoned.

A more sophisticated scenario would be to transform the presumption into a doctrine of

mutual confidence between the ECtHR and domestic courts.76 Imposed on all parties to the

Convention, thus reflecting equality among CoE members, mutual confidence will differ greatly

from the EU principle of mutual trust. Its core function will be to impel local courts and

administration to observe best practices addressing the same legal problem by other national

72 See article 216 TFEU.73 Gragl, P. (2013). The accession of the European Union to the European Convention on Human Rights . Oxford and Portland, Oregon: Hart Publishing, 197-206.74 De Baere, G., and Roes, T. (2015). EU loyalty as good faith. International and Comparative Law Quarterly, 64, pp 829-874.75 See Chapter II.D.76 By "domestic courts" we mean both national courts of the CoE member states and the CJEU, as the "internal" court of the EU.

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courts when balancing conflicting rights or applying the principles of necessity and

proportionality.77 Therefore, the margin of appreciation will narrow regardless of whether or not

there is consensus on a specific issue.78

What is more, under the mutual confidence regime, the ECtHR will only probe if decisions

delivered by internal courts are consistently based on Strasbourg jurisprudence as well as

satisfy strict procedural guarantees and justification standards. In this way, the very ECtHR will

be remodeled into a court of cassation.79

In a nutshell, the supervision of adherence, protection and promotion of fundamental rights

and freedoms will take place on a lower decision-making level, which is definitely more

democratic than a "despotic imposition" by the Court.

To wrap up, an EU accession to the ECHR will boost inter-party dialogue to strengthen human

rights protection in the context of the principle of subsidiarity.

C. The role of the EU in the international legal order

By integrating the ECHR in its primary substantive law,80 the EU will have a new opportunity

to revise its role as a subject of international law. This might even be the first indication of an EU

switch to constitutional pluralism from the prevailing rigid constitutionalist approach, which is

apparent throughout the Kadi saga. By transforming the CJEU into a human rights court, the EU

can, finally, influence global policies. For example, its cohesive jurisprudence- thanks to the help

from the judges in Strasbourg, can contribute to the corroboration of a consensus on a given legal

problem.81 In the long-term future, the EU might even unite its voice with other regional

organizations and initiatives to renew the already malfunctioning UN System.82 Instead of hiding

77 Callewaert, J. (2014). The accession of the European Union to the European Convention on Human Rights . Strasbourg: Council of Europe Publishing.78 For more details on the role of consensus in international human rights law, see: Wildhaber, L., Hjartarson, A. and Donnelly, S. (2013). No Consensus on Consensus? The practice of the European Court of Human Rights. Human Rights Law Journal, 33, 7-12.79 De Schutter, O. (2014). Bosphorus Post-Accession: Redefining the Relationships between the European Court of Human Rights and the Parties to the Convention. In: Kosta, V., Skoutaris, N. and Tzevelekos, VS. (eds.) The EU accession to the ECHR. Oxford and Portland, Oregon: Hart Publishing, 177-198.80 We believe that art. 52.3+53 ChFR and 53 ECHR are complimentary clauses that can co-exist on the same level in the hierarchy of EU law. Gragl, P. (2013). The accession of the European Union to the European Convention on Human Rights. Oxford and Portland, Oregon: Hart Publishing, 99-102 disagrees giving the Convention "mezzanine" status.81 One must not forget that CJEU case law will illustrate the stance of 28 CoE member states plus that of the EU itself, in other the words the stance of the majority of CoE members.82 Strengthening the United Nations, Statement by the Elders on February 7, 2015.

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behind its fragile "bubble" within the international sphere, the EU will come to terms with its

capacities and boundaries.

Last but not least, the greatest breakthrough would be the Union's progress in the area of

positive obligations. Modern developments in the essence of social and environmental rights,

already depicted in international human rights law83, can enrich EU law with concepts such as

sustainable development, due diligence, participation of affected communities or minorities in the

decision-making process.84 Thusly, the EU will experience a second shift from a court-centric

position to addressing the needs of private parties and individuals, both on an ad hoc basis and

collectively.85

V. Interim Conclusions

The purpose of the present paper was to elaborate on a positive outlook of EU accession to

the ECHR. In doing so, the historical ties between the CJEU and the ECtHR inattentive to

accession have been described. A scrupulous inspection of the arguments used in Opinion 2/13

to block such an EU move proved their invalidity, save for one,86 which is easily fixed. The

theoretical background behind the initiative for accession followed suit. Finally, the most

predictable results in the interplay of European and international law were analyzed completing

our illustration of the necessity for the EU to become a member to the CoE.

83 See, amongst others, Lopez Ostra vs. Spain, Hatton vs. United Kingdom, Oneryildiz vs. Turkey and the Aarhus Declaration. 84De Witte, B. (2014). Beyond the Accession Agreement: Five Items for the European Union's Human Rights Agenda. In: Kosta, V., Skoutaris, N. and Tzevelekos, VS. (eds.) The EU accession to the ECHR. Oxford and Portland, Oregon: Hart Publishing, 349-355.85 Lixinski, L. (2014). Taming the Fragmentation Monster through Human Rights? International Constitutionalism, "Pluralism Lite" and the Common Territory of the Two European Legal Orders. In: Kosta, V., Skoutaris, N. and Tzevelekos, VS. (eds.) The EU accession to the ECHR. Oxford and Portland, Oregon: Hart Publishing, 219-233.86 That would be the Strasbourg Court's capacity under the Accession Agreement to find that "only some of the co-defendants are responsible for a breach, effectively ruling on division of competences", see II.C.

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