The accession of the European Union to the Rome Convention. Compliance with the European Convention on Human Rights obligations within the European Union legal order

Authors

  • José Rafael Marín Aís

Keywords:

Fundamental rights protection in the EU, European Union accession to the ECHR, International responsibility of the EU, Execution of judgments of the ECtHR, Loyal cooperation

Abstract

The opening of the negotiations for the EU’s accession to the ECHR under the Lisbon Treaty has revealed many technical and legal challenges and obstacles which pave the way for a long process probably involving the prior opinion of the CJEU. In June 2011 a Draft of legal instruments on the accession of the European Union to the ECHR was adopted following the Council of Europe-EU negotiations. One year after, in June 2012, its content has been taken as a first step for the beginning of a second period of negotiations. This article analyzes some aspects of the Draft of legal instruments as, for instance, the co-respondent mechanism; taking into account its design and imperfections some rules are proposed for the division of the international responsibility stemming from the ECHR among the EU and its Member States. Furthermore, some aspects of the principle of loyal cooperation regarding the execution of the ECHR as a mixed agreement are described. It can be foretold that the ECHR is an international agreement that has no parallel and that it will bring relevant changes to the material and institutional features of the EU legal order. Accession may overcome the material limits inherent to the judicial review regarding fundamental rights in several areas of the EU legal order where the jurisdiction of the CJEU is restricted; moreover, accession will complete the available judicial remedies of this legal order. Finally, the hypothetical violations to the rights enshrined under the ECHR occasioned by EU institutions will no longer be attributed to its Member States, but to the EU itself.

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Issue

No. 44 (2013): enero-abril

Section

STUDIES

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