A Critical Opinion of Opinion 2/13 of the Ecj

What did the court decide?

In the Opinion 2/13 the European Court of Justice (ECJ) ruled that accession of the European Union(EU) to the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) is not compatible with EU law. Specifically, the court asserted that the draft agreement is not compatible with Article 6(2) TEU or with Protocol (No 8).

What was the Court’s reasoning?

The Court structured its reasoning in 5 parts.

The first section emphasised the specific characteristics and autonomy of EU law. The accession to the ECHR must not affect the autonomy of the EU legal order. As accession meant that the EU would be legally bound by the decisions of the ECHR and this would be an unacceptable limitation on the EU’s autonomy. The Court stated that accession cannot compromise the protection provided for by the Charter or the primacy of EU law according to the Court’s interpretation of Article 53 of the Charter. The power that this article grants the Member States must be limited by coordinating the ECHR with the Charter — something the draft agreement does not ensure. Secondly, the ECJ believed that requiring Member States to check whether other Member States have not breached any fundamental rights is contrary to the principle of mutual trust. Finally, the ECJ asserted that Protocol 16 ECHR allowing the highest courts in Member States to request a preliminary ruling may be threatened. This would allow advisory opinions to come from the ECtHR rather than the ECJ, consequently weakening the autonomy of the EU.

In the second section, the Court argued that “an international agreement cannot affect the allocation of powers fixed by the treaties” - a concept protected by Article 344 TFEU. This article means that respect must be given to the methods provided for within the treaties. The draft agreement did not provide such a provision.

The Court went on to criticise the co-respondent mechanism. It claimed that the...