The Future of EU Accession to the ECHR after Opinion 2/13: Is It Still Possible and Is It Still Desirable?
EU Constitutional Law Review, Forthcoming
Europa Working Paper No 2015/02
35 Pages Posted: 9 Jun 2015 Last revised: 10 Jun 2015
Date Written: June 9, 2015
Opinion 2/13 of the European Court of Justice on the European Union’s accession to the European Convention on Human Rights has dealt a severe blow to the ambitions of the EU and the Council of Europe to put the relations between the EU and the ECHR system on a sure and formal footing. The CJEU held numerous aspects of the Draft Accession Agreement to be incompatible with the Treaties. Accession cannot therefore go ahead as planned. This article explores whether and how accession could still be achieved and if in light of the Court’s demands it can still be maintained that it would improve the human rights protection of individuals in the EU. The argument proceeds in four steps: first, the article outlines the background to Opinion 2/13 and the basic tenets of the Draft Accession Agreement; second, it explores the technical options available to overcome the hurdles to accession, such as changes to the accession agreement, reservations, unilateral declarations, and Treaty change; third, it provides a diagnosis of the shortcomings identified by the Court and proposes possible solutions; and fourth, it expresses some doubts whether in light of these proposed solutions, accession is still desirable.
Keywords: EU; ECHR; accession; human rights; common foreign and security policy; area of freedom security and justice; mutual recognition
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