A very fearful Court? The protection of fundamental rights in the EU after Opinion 2/13

In December 2014 the Court of Justice of the European Union found, in Opinion 2/13, that the Draft Agreement for the EU accession to the ECHR was not compatible with the Treaties; unfortunately, some of the grounds relied upon by the Court will be difficult to remedy in a new agreement, even should the other parties to the ECHR be willing to negotiate a new agreement. This contribution recalls the reasons why accession was deemed necessary, and engages in a critical analysis of the Court’s ruling. In particular, it takes issue with the Court’s approach to justice and home affairs, where the Court would like the accession agreement to somehow relieve the Member States of some of their ECHR obligation when giving effect to legislation based on ‘mutual trust’. The article then suggests that the three political institutions should simply declare that they consider themselves bound by the ECHR and that they will act without delay when and if the European Court of Human Rights should find that a piece of Union law is incompatible with the Convention