CYIL 2015

MONIKA FOREJTOVÁ CYIL 6 ȍ2015Ȏ The unique nature of the situation was further accentuated by the fact that only states in their position of supreme sovereigns had always been the high parties of the Convention. However, the new system was based on a sui generis entity, namely the European Union, becoming a high party of a multilateral treaty. 15 According to the same text of primary law (Article 344 TFEU), the intended accession should not have interfered with the powers of the Union as specified by the Treaty on European Union and the Treaty on the Functioning of the European Union, on which the system of the EU is based. From a purely formal point of view, an accession to any international treaty is rather a simple matter. From a material point of view, however, there was a clash of two systems both aimed at the same goal, namely the protection of rights and liberties of individuals. Matters became more complicated, especially for the EU, when actual threat of liming the competences of EU bodies emerged, most importantly of the CJEU itself. The original idea that it would be quite simple to draw a line between the competences of the European Court of Human Rights in Strasbourg (Council of Europe) and the Court of Justice of the European Union (EU) in the field of human rights soon proved to be overly optimistic. In 2009 on, the deciding power of the CJEU in the field of protection and enforcement of human rights within EU territory grew as a result of the Charter of Fundamental Rights of the European Union. Therefore, it soon became clear that its subjection to an older, more refined and especially legal system of regional human rights protection would find its opponents. In spite of visions of Member States’ governments and the plan laid out by the European Commission, it was the CJEU itself, which halted the progress towards a monist system of human rights in the “wider” Europe. The Court of Justice of the European Union was quite clear in its conclusions that the proposed agreement on accession, prepared for several years by EU experts and Council of Europe legal advisors 16 was incompatible with the law of the European Union. The CJEU held that there was no way for the European Union to accede to the Convention under current circumstances. In its vast opinion, the CJEU held as follows: “The agreement on the accession of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms is incompatible with Article 6 paragraph 2 TEU and Protocol (no. 8) to Article 6 paragraph 2 of the Treaty on European Union on the accession of the Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms.” How could the CJEU have arrived at such conclusion, when the Council of Europe itself had already made all preparations so that EU – which itself applied 15 MALENOVSKÝ, J. Půlstoletí od rozsudku Costa/ENEL: je unijní právo (stále) zvláštním právním řádem? (Half century after Costa/ENEL: is EU law (still) a separate legal system?) Právník , no. 3, 2015, pp. 193-215. 16 E.g. Prof. Dr. Jörg Polakiewicz, Director of Legal Advice and Public International Law .

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