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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.