Zbornik Radova Pravnog Fakulteta u Nišu (Jan 2016)
Opinion 2/13 of the Court of Justice and obstacles for EU accession to the European Convention for the protection of human rights and fundamental freedoms
Abstract
The idea of accession of the European Union to the European Convention on Human rights dates back to more than 40years. The aspirations to make that happen are embodied in a complex process that has been underway for a long period. While all EU member states have already acceded to the Convention (individually), for many reasons it is considered useful for the EU itself to approach it. After numerous and lengthy negotiations, the last step on this path seems to have been made with the adoption of the draft agreement on the accession of the EU to the European Convention. However, only then did the real obstacle emerge. Namely, in December 2014, the Court of Justice adopted a negative advisory opinion concerning the compliance of the aforementioned draft with the Treaty of Lisbon. The Court of Justice has pointed out several key problems on incompatibility of these two acts. In the Opinion of the Court of Justice, the non-compliance is related to: 1) the specificity and autonomy of EU law; 2) the monopoly of jurisdiction of the Court of Justice in the settlement of disputes, in accordance with Art. 344 TFEU; 3) the recently established co-respondent mechanism in the proceedings before the European Court of Human Rights; 4) the procedure for prior involvement of the Court of Justice; and 5) the specificity of the EU law on issues concerning the common foreign and security policy. The question remains how to overcome the deadlock in the process of EU accession to the European Convention of Human Rights, caused by the too rigid and inflexible Opinion of the Court of Justice, and whether the process will be continued at all.
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