Accession of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) – Analysis of Opinion 2/13 of the European Court of Justice

Abstract: On the 18th of December 2014, the Court of Justice of the European Union delivered the historic Opinion 2/13, where it ruled that the draft agreement on the accession of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms is not compatible with Article 6(2) of the Treaty on European Union or with Protocol (No 8) relating to Article 6(2) TEU.In terms of practical effects, the Court’s long list of objections to the draft agreement as expressed in Opinion 2/13, blocked, at least temporarily, the road towards the accession of the EU to the ECHR. Furthermore, in symbolic terms, Opinion 2/13 reflected the Court’s fundamental disagreement with the Commission, the Council, the European Parliament, and the 24 Member States that submitted their observations in the context of the Opinion request, all concluding that “the draft agreement is compatible with the Treaties”. Finally, in terms of internal organization and function, Opinion 2/13 exposed the division between the Court and the Advocate General Kokott, who had concluded in her View that under certain conditions, the draft agreement is compatible with EU law. It is, therefore, evident that there are many aspects of Opinion 2/13 that require thorough analysis and interpretation. The core of this Thesis is an attempt to answer the following questions: 1. Did the Court fully and adequately justify its negative Opinion to the question of the European Commission on the following issue: “is the draft agreement providing for the accession of the European Union to the European Convention for the protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘the ECHR’) compatible with the Treaties?”? 2. How is the protection of human rights in Europe affected by the Court’s rejection of the accession of the EU to the ECHR and what is the way forward?