CYIL 2015

HUMAN RIGHTS BETWEEN STRASBOURG AND LUXEMBOURG … for accession – could accede to the Convention? What was the CJEU afraid of? The answer, or at least a partial one, can be found in the ending text of the opinion in paragraphs 257-258. The CJEU bluntly stated that the draft agreement on the accession of the European Union to the ECHR: – 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; – i t 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. As such, the draft agreement was found to be incompatible with Article 6 paragraph 2 TEU and Protocol no. 8 thereto related. The key basis of the mentioned conclusion was the firm belief of the CJEU and its judges 17 that, at all times, principles of priority, autonomy and supremacy of EU law over all relevant legal systems must be upheld. Moreover, the CJEU saw the proposed agreement as not respecting the specific nature of EU law regarding judicial review of acts, actions or omissions of the Union in the field of common foreign and security policy. The response of EU Member States and the Council of Europe followed soon after. At the opening of judicial year in January 2015, president of the Strasbourg court, Mr. Dean Spielman, said: “For my part, the important thing is to ensure that there is no legal vacuum in human rights protection on the Convention’s territory, whether the violation can be imputed to a State or to a supranational institution. Our Court will thus continue to assess whether State acts, whatever their origin, are compliant

17 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 , č. 3, 2015, pp. 193-215.

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