European Papers (Nov 2024)
The 2023 Draft Agreement on the EU Accession to the ECHR: Possible “Gaps” and “Cracks” in the Co-respondent Mechanism and the Implications for the Bosphorus Doctrine
Abstract
(Series Information) European Papers - A Journal on Law and Integration, 2024 9(2), 745-768 | Article | (Table of Contents) I. Introduction – II. The equivalent protection doctrine – III. An alternative to Bosphorus: The joint responsibility of the EU and its Member States on the basis of the co-respondent mechanism – III.1. The Co-respondent mechanism and joint responsibility – III.2. The “mechanics” of the co-respondent mechanism: A critical overview – III.3. The co-respondent mechanism and the Bosphorus doctrine – IV. “Gaps” or “cracks” in the co-respondent mechanism? – IV.1. Possible “loophole” type one: The co-respondent mechanism’s confines – IV.2. Possible “loophole” type two: Good faith by the involved actors, their willingness to engage with the co-respondent mechanism, and the question of trust – a) The ECtHR – b) The EU – c) The Member States – IV.3. Possible “loophole” type three: An intended “crack”? – V. Conclusion. | (Abstract) Negotiations concerning the accession of the European Union (EU) to the European Convention on Human Rights (ECHR) have resumed following the Court of Justice of the European Union’s delivery of Opinion 2/13, resulting in a new Draft Accession Agreement in 2023. This Article focuses on the co-respondent mechanism provided for in the 2023 draft accession instruments. The application of the co-respondent mechanism shall result in the EU and its Member State(s) being held jointly responsible for ECHR violations owing to EU law, a key aim of the mechanism being to prevent the European Court of Human Rights (ECtHR) from allocating responsibility between the EU and its Member States. This Article briefly explores whether the co-respondent mechanism is solid enough to achieve its goals. The Article identifies three types of possible “loopholes” in the co-respondent mechanism and examines whether they could prompt the ECtHR to consider alternative avenues for holding the involved actors responsible or even refrain from exercising (full) scrutiny either through the so-called Bosphorus doctrine of equivalent protection or by devising a new test for this purpose. Thus, the Article also delves into the future application of the Bosphorus doctrine post-accession. The three types of possible “loopholes” in the co-respondent mechanism pertain to: a) the confines of and the criteria for the applicability of the co-respondent mechanism, and how widely this mechanism will be applied; b) how the involved actors will apply the co-respondent mechanism; and c) reservations to the ECHR.Negotiations concerning the accession of the European Union (EU) to the European Convention on Human Rights (ECHR) have resumed following the Court of Justice of the European Union’s delivery of Opinion 2/13, resulting in a new Draft Accession Agreement in 2023. This Article focuses on the co-respondent mechanism provided for in the 2023 draft accession instruments. The application of the co-respondent mechanism shall result in the EU and its Member State(s) being held jointly responsible for ECHR violations owing to EU law, a key aim of the mechanism being to prevent the European Court of Human Rights (ECtHR) from allocating responsibility between the EU and its Member States. This Article briefly explores whether the co-respondent mechanism is solid enough to achieve its goals. The Article identifies three types of possible “loopholes” in the co-respondent mechanism and examines whether they could prompt the ECtHR to consider alternative avenues for holding the involved actors responsible or even refrain from exercising (full) scrutiny either through the so-called Bosphorus doctrine of equivalent protection or by devising a new test for this purpose. Thus, the Article also delves into the future application of the Bosphorus doctrine post-accession. The three types of possible “loopholes” in the co-respondent mechanism pertain to: a) the confines of and the criteria for the applicability of the co-respondent mechanism, and how widely this mechanism will be applied; b) how the involved actors will apply the co-respondent mechanism; and c) reservations to the ECHR.
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