The Autonomy and Specific Characteristics of EU law – An obstacle to the EU’s accession to the ECHR?

Since the Lisbon Treaty’s entering into force in 2009 it is stated in Article 6(2) TEU that the EU shall accede to the European Convention for the Protection of Fundamental Rights (ECHR). In the second sentence of the same article it is provided that “such accession shall not affect the Union’s competences as defined in the Treaties”. Attached to the Lisbon Treaty is also Protocol No 8 in which it is held that the accession of the EU to the ECHR must preserve the specific characteristics of the Union and of Union law and that the competences of the EU and its institutions cannot be affected through the accession The autonomy and specific characteristics of EU law is something that the ECJ has always been very safeguarding of in its judgments, and its approach towards international law has not always been the most positive one. With an accession to the ECHR these features of EU law are likely to be affected and the EU will also have to set up a functioning cooperation with the Council of Europe. The research question of this thesis consequently is whether the autonomy and specific characteristics of EU law is something that might cause problems for the EU’s accession to the ECHR and what the future looks like regarding the accession process. By autonomy of EU law it is according to the ECJ meant that the EU courts are the only ones that can have jurisdiction to interpret EU law, that international treaties cannot amend the Treaties and that the primacy of EU law cannot be jeopardized. Included in the concept of autonomy is the fact that EU law cannot be dependent on the rules of another international legal order. The relationship between EU law and international one has always been a tricky one and the ECJ’s judgments in this area of law has been quite contradictive. One thing that is clear is that the ECJ is of the opinion that EU law will most often prevail when norms of international law conflicts with provisions of EU law. The ECJ has further elected itself to be the final arbiter in deciding which provisions of international law is in compliance with EU law and which are not. In 2013 a Draft Accession Agreement on the accession of the EU to the ECHR was presented and in 2014 the ECJ delivered Opinion 2/13 in which it held that the DAA was not compatible with the EU Treaties since it was liable to adversely affect the autonomy and specific characteristics of EU law. Thus the accession process cannot go on until the ECJ’s concerns in Opinion 2/13 are addressed. The reactions to Opinion 2/13 has been many. Some has called it a clear and present danger to human rights protection and others claim that those who value human rights no longer have any reason to pursue the EU accession to the ECHR, while some has been more understanding towards the approach taken by the ECJ towards the accession since the autonomy and specific characteristics is at the heart of the EU and important features for the functioning of the Union. It is concluded in the thesis that the ECJ’s strong desire to preserve the autonomy and the specific characteristics of EU law at any prize at present blocks the accession to the ECHR and consequently amounts to a threat to fundamental rights protection within Europe. It is also concluded that to be able to continue with the accession process either the DAA will have to be amended, the Treaties will have to be amended or the EU will have to make reservations to the ECHR in connection with the accession. The most likely option is that the DAA will be amended and thus that the negotiations between the EU and the Council of Europe on the accession of the EU to the ECHR will have to be started again