Opinion 2/13 on EU accession to the ECHR: a Christmas bombshell from the European Court of Justice

von Sionaidh Douglas Scott

On 18 December 2014, the ECJ delivered its long awaited Opinion 2/13 on the compatibility with EU law of the draft agreement for EU accession to the ECHR. The ECJ concluded, to the great surprise of many, that the accession agreement is not compatible with EU law. Indeed it found so many obstacles with the agreement that it has now rendered accession very difficult, if not impossible.

For a long time, it has been considered expedient that the EU should accede to the ECHR, in order to optimize its human rights protection. All EU Member States are already Contracting Parties to the ECHR, and there are many advantages to the EU itself acceding. First, a formal linking of the EU and ECHR could be seen as underlining the EU’s concern for human rights, given that the ECHR is seen as part of European cultural and political heritage. Second, the accession would finally answer criticisms of double standards: that the EU requires accession of all Member States but not, before Lisbon at least, of itself. Third, and crucially, EU accession to the ECHR would alleviate the situation in which individuals find themselves when faced by possible breaches of the ECHR by EU institutions. At present, unless EU law has been implemented by some Member State act (in which case action would be against that Member State) there is no possible action in Strasbourg. This leaves a gap in judicial enforcement.

That being said, the ECJ concluded 2 decades ago in Opinion 2/94 that, under the existing treaty provisions, there was no competence for what was then the Community to accede to the ECHR. The Lisbon treaty remedied this by amending Article 6(2) TEU to place an obligation on the EU to accede to the ECHR, and accession proceedings were opened. The mandatory accession procedure, set out in Article 218 TFEU, is cumbersome and complex ...

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