CJEU Opinion 2/13 – Three Mitigating Circumstances

von Martin Scheinin

The academic response to CJEU Opinion 2/13 on EU accession to the European Convention on Human Rights can be characterised as a combination of shock, disbelief and protest. Let me just refer to the critical blog posts by Sionaidh Douglas-Scott, Leonard Besselink, Steve Peers and Walther Michl. Indeed, the Opinion looks like total overkill, as the grounds for rejecting the draft accession agreement are so many and so diverse that they unavoidably give the impression of being primarily based on a defensive and territorial attitude of protecting the exclusive and superior nature of the CJEU’s own jurisdiction. One who reads the Opinion in full cannot honestly make the assessment that it would be based on the premise of seeking to improve the overall institutional framework for human rights protection. As commentators above have pointed out, a human-rights-based legal assessment of the Opinion is unavoidably negative.

That said, the critical discussion on Opinion 2/13 should include a search for rational explanations as to why the CJEU’s opinion is negative, even if in the extreme. What follows is a short reflection on three factors towards that kind of an approach, without any intention to defend the Opinion itself.

(1) The time may not be right for EU accession to the ECHR. If one looks at Opinion 2/13 as a purely political move (by a very particular judicial actor known for its history of also being political), it may prove in time to have been a wise political move ...

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