Elisabeth Lentsch

Abstract

Article 6(2) of the Treaty of Lisbon and the Protocol No. 14 to the ECHR paved the way for the long awaited EU’s accession to the European Convention of Human Rights (ECHR). This will bring a formal and structural revolution to the human rights protection system in Europe touching upon the jurisdiction of the CJEU. Due to the latter, the EU has become a human rights player in Europe. It has attributed particular significance to the Council of Europe’s principal human rights instrument, the ECHR and related case law of the European Court of Human Rights in Strasbourg (ECtHR). In the course of time, both Courts have established a form of dialogue, basically reflected in their mutual recognition and reference in their case law. However, so far the interplay between both Courts is missing any formal legal basis. The legally foreseen EU accession to the ECHR shall institutionalise their relationship.

 Such a step means an exceptional turn. For the very first time an international organisation shall be formally bound as a party to an international human rights treaty. Such a membership involves an external monitoring and surveillance mechanism. The process for actual accession was launched and a draft accession agreement was prepared. In this context the question on the safeguard of the autonomy of the EU’s legal order and in particular of the jurisdiction of the CJEU was raised as fundamental. This paper shall scrutinise the tension between the explicit obligation for accession to the ECHR, and the related review of the compliance with it by the ECtHR on the one hand, and the veto of the CJEU, which argues with the necessary safeguard of the principle of autonomy of EU law and in particular of its own judicial monopoly.

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