In Opinion 2/13, the Court of Justice rejected the EU’s accession to the ECHR, in large part for reasons related to the autonomy of the EU legal order. In doing so, the Court focused on the Draft Accession Agreement and draft explanatory report. However, the draft accession package consists of five accession instruments, all of which are considered equally necessary by the negotiators, including a draft Memorandum of Understanding with respect to applications before the ECtHR against non-EU Member States that are associated with parts of the EU legal order. Although the Court of Justice did not address the Memorandum of Understanding in Opinion 2/13, this contribution argues that it poses similar risks for the autonomy of the EU legal order, making it all the more remarkable that this part of the accession instruments has not been renegotiated post-Opinion 2/13, thereby constituting an overlooked potential stumbling block for the EU’s future accession to the ECHR.
Jarne De Geyter (Wed,) studied this question.