CYIL 2015

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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.

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

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

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.

E.g.

Prof. Dr. Jörg Polakiewicz, Director of Legal Advice and Public International Law .