In its Opinion, the ECJ, after noting that the problem of the lack of any legal basis for the EU’s accession to the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) has been resolved by the Treaty of Lisbon, pointed out that since the EU cannot be considered to be a State, such accession must take into account the particular characteristics of the EU. Having clarified this, the Court observed inter alia that, as a result of accession, the ECHR, like any other international agreement concluded by the EU, would be binding upon the institutions of the EU and on its Member States, and would therefore form an integral part of EU law. In that case, the EU, like any other Contracting Party, would be subject to external control to ensure the observance of the rights and freedoms provided for by the ECHR. However, it stated that that cannot be the case as regards the interpretation of EU law, including the Charter, provided by the Court itself. In this context, the Court analysed the specific characteristics of EU law as regards judicial review in matters of the common foreign and security policy (‘CFSP’). It noted that, as EU law now stands, certain acts adopted in the context of the CFSP fall outside the ambit of judicial review by the Court. That situation is inherent to the way in which the Court’s powers are structured by the Treaties, and, as such, can only be explained by reference to EU law alone. Nevertheless, on the basis of accession as provided for by the draft agreement, the European Court of Human Rights would be empowered to rule on the compatibility with the ECHR of certain acts, actions or omissions performed in the context of the CFSP. Therefore, the draft agreement fails to have regard to the specific characteristics of EU law with regard to the judicial review of acts, actions or omissions on the part of the EU in the area of the CFSP and in the light of the problems identified, the Court concluded that the draft agreement on the accession of the European Union to the ECHR was not compatible with EU law.
- EU’s accession to the ECHR,
- incompatibility with EU law,
- the powers of the Court,
- Common Foreign and Security Policy (CFSP)
Available at: http://works.bepress.com/luis_gonzalez_vaque/191/