scholarly journals The Reinterpretation of TFEU Article 344 in Opinion 2/13 and Its Potential Consequences

2015 ◽  
Vol 16 (1) ◽  
pp. 169-178 ◽  
Author(s):  
Stian Øby Johansen
Keyword(s):  
European Union ◽  
Human Rights ◽  
European Convention ◽  
The European Union ◽  
Court Of Justice ◽  
The Eu

On 18 December 2014 the Court of Justice of the European Union (CJEU) delivered Opinion 2/13 and stunned the legal world by declaring that the Draft Agreement on the Accession of the EU to the European Convention on Human Rights (the Accession Agreement) was incompatible with the constituent treaties of the Union. Although some experts, admittedly, had been skeptical about certain aspects of Draft Accession Agreement, no one seems to have expected an opinion so critical and uncompromising. The opinion has consequently received widespread disapproval in the EU legal blogosphere.

Autonomy and Effectiveness as Common Concerns: A Path to ECHR Accession After Opinion 2/13

2015 ◽  
Vol 16 (1) ◽  
pp. 147-167 ◽  
Author(s):  
Christoph Krenn
Keyword(s):  
European Union ◽  
Human Rights ◽  
European Convention ◽  
The European Union ◽  
Court Of Justice ◽  
Constitutional System ◽  
The Eu

Opinion 2/13is a sweeping blow. After four years of negotiations, it took the Court of Justice of the European Union (CJEU or the Court) only a few paragraphs to pick to pieces the draft accession agreement on the EU's accession to the European Convention on Human Rights (ECHR), finding a conflict with the EU Treaties on ten grounds. The Court's message is clear: Accession, under the terms of the draft agreement, would risk undermining the very essence of the EU's constitutional system.

scholarly journals The day after: Protecting the human rights affected by environmental challenges after the EU accession to the European Convention on Human Rights

2018 ◽  
Vol 20 (4) ◽  
pp. 213-224 ◽  
Author(s):  
Irene Antonopoulos
Keyword(s):  
European Union ◽  
Human Rights ◽  
Environmental Protection ◽  
European Convention ◽  
The European Union ◽  
Environmental Rights ◽  
Environmental Challenges ◽  
Court Of Justice ◽  
Environmental Protection Policies ◽  
The Eu

This article explores whether a potential accession of the European Union to the European Convention on Human Rights, offers a more effective method of protection for ‘environmental human rights’: those rights whose enjoyment is allegedly affected by environmental challenges. The European Court of Human Rights has decided on claims of alleged violations of human rights by both environmental degradation and the enforcement of environmental protection policies implementing EU environmental law. On the other hand, the capacity of the Court of Justice of the European Union to decide on human rights issues has been repeatedly challenged, while the inability of the Court to protect procedural (environmental) rights when it came to NGOs, allows for challenging the capacity of the Court of Justice of the European Union to protect substantive (environmental) rights as well. Will an accession mean that applicants will be able to bring claims for alleged violations, caused by the enforcement of EU generated environmental protection policies, against the EU Institutions rather than the enforcing State? This article follows the relevant developments towards the accession, and consequently seeks to determine how the day after the accession will look for the protection of human rights affected by environmental challenges.

scholarly journals After the Dust Has Settled: How to Construct the New Accession Agreement After Opinion 2/13 of the CJEU

2017 ◽  
Vol 18 (4) ◽  
pp. 919-968 ◽  
Author(s):  
Przemyslaw Tacik
Keyword(s):  
European Union ◽  
Human Rights ◽  
European Convention ◽  
The European Union ◽  
Court Of Justice ◽  
Legal Thinking ◽  
Pros And Cons ◽  
Scholarly Attention ◽  
The Eu

Since December 18, 2014, when the Court of Justice of the European Union (CJEU) issued its notorious Opinion 2/13, the conclusions of the Court have been a subject of numerous analyzes and debates—often sharp in their criticism. Now that the content of the Opinion seems fairly elucidated, the scholarly attention should turn towards searching for practical solutions to the CJEU's demands. This Article aims to provide a list of possible solutions to each requirement of the Opinion and assessing their pros and cons. Instead of concentrating on the obstacles posed by the Court, it is incumbent to address the problems with innovative legal thinking and save the project of the EU acceding to the European Convention on Human Rights (ECHR).

scholarly journals Mechanizm współpozwania w świetle przystąpienia Unii Europejskiej do Konwencji o ochronie praw człowieka i podstawowych wolności

2018 ◽  
Vol 24 ◽  
pp. 63-75
Author(s):  
Anna Moskal
Keyword(s):  
European Union ◽  
Human Rights ◽  
Member State ◽  
European Convention ◽  
The European Union ◽  
Joint Liability ◽  
Court Of Justice ◽  
European Court ◽  
European System ◽  
The Eu

The co-respondent mechanism in the view of accession of the European Union to the European Convention of Human RightsFor the past seventy years there have been discussions and activities on the accession of the European Union to the European Convention on Human Rights. The ratio of the Union’s accession to the Convention is a need to harmonize the European system of protection of individual rights. There are numerous problems and obstacles to achieve this goal created by the specific, supra-national character of the Union sui generis. It requires the introduction of unique mechanisms and procedures that would allow an international organization such as the EU to become a party to the Convention. One such procedure is provided in art. 3 of the draft agreement, the co-respondent mechanism of the European Union and the Member State in proceedings under the European Court of Human Rights. The purpose of the article is to present the allegations of the Court of Justice, assess their validity and indicate possible future solutions regarding the co-respondent mechanism. After analyzing the European Commission’s request for an opinion on the compliance of the draft agreement with community law, the CJEU considered the draft as incompatible with EU law and listed ten issues that prevented the Union from joining the Convention in the proposed form. Among them, as many as three points refer to the corresponding mechanism and concern in particular the decision on the validity of the conclusions of the Union or a Member State by the Strasbourg Court, accepting joint liability and deciding on the division of responsibility between the Union and the Member State. In the article dogmatic method was used in order to analyze three aforementioned points. Due to the provision of art. 218 par. 11 p. 2 TFEU, the Commission is bound by the opinion of the Court of Justice, and that the presented draft agreement cannot constitute an international agreement allowing for the accession of the Union to the Convention in the proposed form.

The European Legal Order

2017 ◽  
Author(s):  
Bernard Stirn
Keyword(s):  
European Union ◽  
Human Rights ◽  
Legal Order ◽  
European Convention ◽  
The European Union ◽  
Court Of Justice ◽  
European Court ◽  
Domestic Courts ◽  
The Law ◽  
The Eu

Chapter 3 shows that the confluence of the law of the European Union and of the European Convention on Human Rights is a European legal order worthy of the name. It outlines the law of the European Union after the Lisbon Treaty, setting out its principles and the ways in which competences are shared in the EU post Lisbon, between the European Council, the Council, the Commission, the European Parliament, and the Court of Justice of the European Union. The chapter further sets out the outline of the system of rules of the European Union. Then the chapter turns to the characteristics of what has been termed a Europe of human rights, and how the European Court of Human Rights (ECHR), in conjunction with domestic courts, police the law of the European Convention on Human Rights. Finally, the chapter brings together the law of the European Union and the ECHR.

scholarly journals ASPECTS OF THE INTERACTION BETWEEN THE COURT OF JUSTICE B OF THE EUROPEAN UNION AND THE EUROPEAN COURT OF HUMAN THE EUROPEAN RIGHTS AFTER OPINION NO. 2/13

Law and World ◽  
2020 ◽  
Vol 14 (1) ◽  
pp. 96-116
Keyword(s):  
European Union ◽  
Human Rights ◽  
European Convention ◽  
The European Union ◽  
Human Rights Protection ◽  
Rights Protection ◽  
Court Of Justice ◽  
European Court ◽  
The Relationship ◽  
The Eu

The present article is dedicated to one of the most debatable aspects of human rights protection in the European Union (EU), specifically the question of whether the EU should accede to the European Convention on Human Rights (ECHR). This article analyzes the maintained deficit in the functioning of the European Union in terms of the important parameters of democracy as a result of the failed EU accession to the ECHR as well as the new reality created in the relationship between the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR) after the negative Opinion no. 2/13 of the CJEU and the changes in the nature of the interaction between the two European courts in this changed situation.

ASPECTS OF THE INTERACTION BETWEEN THE COURT OF JUSTICE B OF THE EUROPEAN UNION AND THE EUROPEAN COURT OF HUMAN THE EUROPEAN RIGHTS AFTER OPINION NO. 2/13

Law and World ◽  
2020 ◽  
Vol 6 (1) ◽  
pp. 96-116
Keyword(s):  
European Union ◽  
Human Rights ◽  
European Convention ◽  
The European Union ◽  
Human Rights Protection ◽  
Rights Protection ◽  
Court Of Justice ◽  
European Court ◽  
The Relationship ◽  
The Eu

The present article is dedicated to one of the most debatable aspects of human rights protection in the European Union (EU), specifically the question of whether the EU should accede to the European Convention on Human Rights (ECHR). This article analyzes the maintained deficit in the functioning of the European Union in terms of the important parameters of democracy as a result of the failed EU accession to the ECHR as well as the new reality created in the relationship between the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR) after the negative Opinion no. 2/13 of the CJEU and the changes in the nature of the interaction between the two European courts in this changed situation.

scholarly journals Will the European Union accede to the European Convention on Human Rights? ‘Before’ and ‘after’ the Opinion 2/13 of the ECJ

2020 ◽  
pp. 370-381
Author(s):  
Olena Polivanova ◽  
Olga Poberezhna
Keyword(s):  
European Union ◽  
Human Rights ◽  
Ad Hoc ◽  
European Convention ◽  
The European Union ◽  
Court Of Justice ◽  
Long Run ◽  
Before And After ◽  
Long Time ◽  
The Eu

The article examines the European Union’s accession to the 1950 Convention for the Protection of Human Rights and Fundamental Freedoms. To this end, two stages of accession are being examined: the stage before the Court of Justice of the European Union delivered its Opinion 2/13 of 18 December 2014 on the compatibility of the Draft agreement on the accession of the European Union to the Convention with the Treaty on the European Union and the Treaty on the Functioning of the European Union and the stage after this Opinon. In the frames of the first stage the prerequisites for the Court of Justice of the European Union’s making the Opinion 2/13, the content of the Draft agreement on the accession of the European Union to the Convention and the main provisions of the legal position of the Court of Justice of the European Union regarding the incompatibility of the Draft agreement on the accession of the European Union to the Convention are analysed. The second stage of the accession examines the intentions and real steps of the institutional mechanism of the European Union and the Council of Europe’s bodies for the implementation of accession, as well as possible ways of eliminating the inconsistencies of the Draft agreement on the accession of the European Union to the Convention identified by the Court of Justice of the European Union in its Opinion 2/13. Considering that the preparation of the first draft of the EU accession agreement to the Convention took about three years, noting the lack of an updated draft accession agreement (which could have taken into account the position of the European Union Court of Justice expressed in its Opinion 2/13), taking into account the necessity of the compatibility assessment of the new draft agreement on the accession of the European Union to the Convention with the EU by the European Union Court of Justice, there is a reason to believe that the issue of the accession of the European Union to the European Convention on Human Rights will have been open for a long time. At the same time, following the adoption of the Opinion 2/13, both the Commission of the European Union and the European Parliament have repeatedly confirmed the continuity of the European Union’s course for accession, and the fact that in early 2020 it was decided to extend the deadlines for the development of legal instruments establishing models of the European Union’s accession to the Convention in the ad hoc group cannot but confirm the perspective of accession at least in the long run.

Human rights and the rule of law in judicial cooperation in criminal matters under the EU–UK Trade and Cooperation Agreement

2021 ◽  
pp. 203228442199593
Author(s):  
Wolfgang Schomburg ◽  
Anna Oehmichen ◽  
Katrin Kayß
Keyword(s):  
European Union ◽  
Human Rights ◽  
Fundamental Rights ◽  
European Convention ◽  
The European Union ◽  
Cooperation Agreement ◽  
Judicial Cooperation ◽  
Human Rights Protection ◽  
Criminal Matters ◽  
The Eu

As human rights have increasingly gained importance at the European Union level, this article examines the remaining scope of human rights protection under the EU–UK Trade and Cooperation Agreement. While some international human rights instruments remain applicable, the Charter of Fundamental Rights of the European Union did not become part of the Trade and Cooperation Agreement (TCA). The consequences, especially the inapplicability of the internationalised ne bis in idem principle, are analysed. Furthermore, the conditionality of the TCA in general as well as the specific conditionality for judicial cooperation in criminal matters are discussed. In this context, the risk that cooperation may cease at any moment if any Member State or the UK leave the European Convention of Human Rights is highlighted. Lastly, the authors raise the problem of the lack of judicial review, as the Court of Justice of the European Union is no longer competent.

scholarly journals Refl ections on the Principle of Equal Treatment in EU Law and the Jurisprudence of the Court of Justice of the European Union and the European Convention on Human Rights

2020 ◽  
Vol 9 (1) ◽  
pp. 5-23
Author(s):  
Marija Daka
Keyword(s):  
European Union ◽  
Human Rights ◽  
Equal Treatment ◽  
European Convention ◽  
Eu Law ◽  
The European Union ◽  
European Union Law ◽  
Court Of Justice ◽  
European Court ◽  
Complex Approach

The paper presents some of the most relevant aspects of European nondiscrimination law established th rough European Union law and the European Convention on Human Rights, looking also at the evolution of the norms and milestones of case-law on equal treatment within the two systems. The paper gives an overview of the non-discrimination concept as interpreted by the Court of Justice of the European Union and by the European Court of Human Rights. We examine the similar elements but also give insight into conceptual differences between the two human rights regimes when dealing with equal treatment. The differences mainly stem from the more complex approach taken by EU law although, based on analysed norms, cases, and provisions, the aspects of equal treatment in EU law are largely consistent with the practice of the ECtHR. Lastly, the paper briefl y places the European non-discrimination law within the multi-layered human rights system, giving some food for thought for the future potential this concept brings.

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