The evolving relationship between the court of justice of the European Union and the European court of human rights post-opinion 2/13: future directions and strategies

Abstract

It’s been almost ten years since the harsh Opinion of the Court of Justice of the European Union (CJEU) on the draft of the Accession Agreement to the European Convention on Human Rights (ECHR); the question that arise is how these two courts and their legal systems have managed to coexist after this backlash. Did this opinion have an impact on the Bosphorus doctrine of the European Court of Human Rights (ECtHR)? And more importantly, is the accession to the ECHR still a desirable option? Accession of the EU to the ECHR it’s an obligation established under the European Treaties, so technically it must happen. However, if negotiations for accession were re-initiated and followed the conditions requested by the CJEU in Opinion 2/13, the result would be a deprivation of the ECtHR’s jurisdiction over some important matters, particularly those sensitive to human rights, such as the Area of Freedom, Security, and Justice (AFSJ). Therefore, accession would become less desirable and more costly in terms of protection of fundamental human rights. It’s hard to imagine that the CJEU would change its position and become more flexible about its most important principles: mutual trust and autonomy of the EU legal order. Since the possibility of accession seems still far away, it is important to find mechanisms to keep the dialogue between these two important courts open; to boost and improve judicial dialogue might be a way to help guarantee cohesion among the different judicial systems for protection of human rights across Europe.