European Papers (Nov 2024)
The Effect of Opinion 1/17 on the EU-ECHR Draft Accession Agreement: Lessons Learned?
Abstract
(Series Information) European Papers - A Journal on Law and Integration, 2024 9(2), 769-782 | Article | (Table of Contents) I. Introduction. – II. Historical background. – III. Relevance of a comparison with Opinion 1/17. – IV. The DAA: Lessons learned from Opinion 1/17? – IV.1 The existence of the treaty’s dispute settlement mechanism outside the EU judicial system. – IV.2 The absence of any competence for foreign courts to interpret and apply EU law. – IV.3 The existence of safeguards against interference with the EU institutions’ proper functioning. – V. Conclusion. | (Abstract) Opinion 2/13, in which the Court infamously declared the first draft agreement on the accession of the EU to the ECHR not to be compatible with the Treaties, is one of the clearest examples of the CJEU’s protectiveness in its external relations case law. Now, ten years later, this very draft agreement has been revised and might again be subjected to the scrutiny of the Court. However, what has changed in the meantime is what scholars consider a softening in the Court’s otherwise rather rigid approach to autonomy. Opinion 1/17 on the Comprehensive Economic and Trade Agreement (CETA) with Canada did indeed come as a surprise to some, as the Investor state dispute settlement (ISDS) system that it establishes was considered to be in line with the notion of autonomy. Naturally, the question arises of whether the CJEU, if asked to rule again on the legality of the DAA concerning the EU’s accession to the ECHR, would follow its conciliatory approach vis-à-vis the international legal order, which it embarked on in Opinion 1/17. Therefore, the present contribution will seek to answer two related questions: Which lessons can be derived from Opinion 1/17, and did the negotiators take these lessons into account in the revised DAA?
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