Opinion 2/13 on Accession of the EU to the ECHR – Luxembourg has spoken

Today, the CJEU has delivered a bombshell.  It has ruled that the draft agreement providing for the EU’s accession to the ECHR is incompatible with EU law.  Specifically, according to para 258 of the Opinion, it:

“is not compatible with Article 6(2) TEU or with Protocol No 8 EU in that:

–      it is liable adversely to affect the specific characteristics and the autonomy of EU law in so far it does not ensure coordination between Article 53 of the ECHR and Article 53 of the Charter, does not avert the risk that the principle of Member States’ mutual trust under EU law may be undermined, and makes no provision in respect of the relationship between the mechanism established by Protocol No 16 and the preliminary ruling procedure provided for in Article 267 TFEU;

–      it is liable to affect Article 344 TFEU in so far as it does not preclude the possibility of disputes between Member States or between Member States and the EU concerning the application of the ECHR within the scope ratione materiae of EU law being brought before the ECtHR;

–      it does not lay down arrangements for the operation of the co-respondent mechanism and the procedure for the prior involvement of the Court of Justice that enable the specific characteristics of the EU and EU law to be preserved; and

–      it fails to have regard to the specific characteristics of EU law with regard to the judicial review of acts, actions or omissions on the part of the EU in CFSP matters in that it entrusts the judicial review of some of those acts, actions or omissions exclusively to a non-EU body.”

It has already been described as an “exceptionally poor” judgment by Prof Steve Peers.  We have not yet had chance to digest it, but EUtopialaw will provide comment and analysis in the very near future.  Watch this space.

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