CYIL 2015

231 / 464

217
HUMAN RIGHTS BETWEEN STRASBOURG AND LUXEMBOURG …
Rights, over the Council of Europe system but also over all rights guaranteed by
national constitutions.21 But can we truly interpret the intention of Member States
as wanting to grant the Charter such vast supremacy over national and international
systems in case of parallel application? Doesn’t this opinion of CJEU go far beyond the
considerations of even the politicians pondering the federalization of the European
Union, which is itself a political question?
It is quite clear that the CJEU does not plan to abandon its position of one of the
chief driving forces of European integration, not even in a situation, where its decision
might – temporarily, let’s hope – result in a conflict among EU, Council of Europe
and member countries of both the regional organizations. It is clear, that through
its conclusions in opinion 2/2013, the CJEU will try to broaden its competence
within the EU, and then, and only then, the court will be more willing to accept
certain limitations by the ECtHR. For example, Halberstam is of the opinion that
the disputed CJEU jurisdiction in the field of common foreign and security policy
(Articles 23-46 TEU, Article 2 paragraph 4 TFEU) can be solved by the member
countries consenting to the CJEU having jurisdiction also over this field.22
The first conclusions formulated in opinion 2/2013 are clear. Unclear, on the
other hand, are the consequences of Article 6 paragraph 2 of the Treaty on EU
remaining unfulfilled or even breached. How will the Union and the Member States
deal with the fact that by the Treaty of Lisbon, they made a promise that they cannot
fulfill? Alternatives to be discussed are many. One solution might be the planned,
however least wanted, review of EU primary law.23 Another way might be to review
Protocol no. 8 to Article 6 paragraph 2 TEU, which might change the parameters,
under which the EU is eligible to accede to the Convention. It cannot be quite ruled
out that through mutual compromise many of the objections raised by the CJEU
against the accession agreement will be overcome by further agreements and the draft
agreement on accession to the Convention will be de facto revised to be mutually
acceptable. It is, of course, also possible that the entire plan of the EU acceding to
the Convention will be postponed indefinitely. A CJEU judge, prof. Jiří Malenovský,
admitted the possibility of so-called shopping forum model, 24 in which each entity
21 Court of Justice of EU decision Costa v. E.N.E.L., 6/64; Internationale Handelsgesellschaft, 11/70;
Simmenthal , 106/77; Kreil, C-285/88. KOMÁREK, J., AVBEJL, M. (ed-) Constitutional Pluralism in
the European Union and Beyond. Oxford: Oxford Hart Publishing, 2012, 452 pages.
22 HALBERSTAM, D.: Foreign Policy and the Luxembourg Court: How to Address a Key Roadblock to
EU Accession to the ECHR’. Available at
luxembourg-court-how-to-address-a-key-roadblock-to-eu-accession-to-the-echr/#.VauzQvlFvIU).
23 HALBERSTAM, D.Foreign Policy and the Luxembourg Court: How to Address a Key Roadblock to
EU Accession to the ECHR’. Available at
luxembourg-court-how-to-address-a-key-roadblock-to-eu-accession-to-the-echr/#.VauzQvlFvIU).
24 Speech by Prof. Jiří Malenovský, CJEU judge, titled „Posudek 2/13 – původ, kontext, význam (Opinion 2/13
– origins, context, meaning“, given at a conference taking place on 22. 5. 2015 titled “Listina základních
práv Evropské unie: Pět let poté aneb jeden lidsko-právní katalog (ne)stačí? (Charter of Fundamental Rights of