Opinion 2/13 on accession to the ECHR : defending the EU legal order against a Foreign Human Rights Court

Abstract

In Opinion 2/13 the CJEU declared that the draft Agreement for Accession of the EU to the ECHR is not compatible with primary EU law, based on a number of objections. This article presents the Opinion and divides the Court’s objections in three categories: concerns which are misconceived and should not have been raised by the CJEU at all; concerns for the CJEU’s own jurisdiction which are more persuasive, but whose importance is exaggerated by the Court; and concerns to preserve a different standard of fundamental rights protection in EU law derogating from the minimum standard of the Convention—a radical (and unjustified) objection, which cannot be mended by simply modifying the Accession Agreement and which makes accession next to impossible.