The Reasonableness of Jealousy: Opinion 2/13 and EU Accession to the ECHR
Forthcoming in W. Benedek, F. Benoit-Rohmer, W. Karl, and M. Nowak (eds), European Yearbook on Human Rights 2015 (Vienna: Neuer Wissenschaftlicher Verlag 2015)
18 Pages Posted: 13 Feb 2015
Date Written: February 01, 2015
Given the immense impact of this negative decision, a critical analysis of Opinion 2/13 and its ramifications is indispensable. This contribution therefore firstly illustrates the arguments the CJEU used to conclude the agreement’s incompatibility with the Union’s legal autonomy (B). Subsequently, it examines – as the title suggests – the reasonableness of the CJEU’s ‘jealousy’ vis-à-vis the ECtHR. On the one hand, jealousy might sometimes be unfounded and therefore unreasonable, particularly if the promise of a more effective and coherent protection of human rights in Europe is rejected in favour of legal autonomy. Part C consequently reviews and criticizes the CJEU’s concerns and concludes that the Court’s arguments are largely unsubstantiated. On the other hand, however, jealousy might also be justified and therefore reasonable at times. Aristotle argued that jealousy belongs to reasonable men for it might lead to good things, whilst envy is base and does not allow the neighbours to have these good things. Part D of this contribution therefore examines the positive and reasonable aspects of this decision. It may be difficult to comprehend in the first place, but perhaps this prior rejection of the Accession Agreement could serve the ECHR system better than subsequent non-compliance.
Keywords: EU accession ECHR, Court of Justice of the European Union, European Court of Human Rights, co-respondent mechanism, prior involvement, autonomy of EU law
Suggested Citation: Suggested Citation