Weekend Edition Nº192

EU Accession to the European Convention on Human Rights: An EU Negotiator’s Perspective

Felix Ronkes Agerbeek 1

I. A New Hope

Mission: Impossible. That is how the editors of a prestigious law journal once described the European Union’s accession to the European Convention on Human Rights.2 It is too soon to say whether they were right or wrong. One thing is certain: the EU has not abandoned its longstanding aspiration to accede to the Convention.3

Between 2020 and 2023 – ten years after the negotiations that had led to the first draft accession agreement – delegates from the EU and from the Member States of the Council of Europe worked out a revised set of accession instruments. This happened out of the limelight, but in full transparency. Almost every negotiating document was published on the website of the Council of Europe.4 Most importantly, the outcome is available online for everyone to scrutinise.5

This is a strange moment to take stock of the negotiations. The agreement is provisional and its fate is still uncertain. Even in the best of scenarios, EU accession to the Convention is likely to require several years, if only because every Member State of the Council of Europe will have to ratify the agreement. Nevertheless, it is also a logical moment to assess the situation. The fact that there is now a revised set of draft accession instruments is a noteworthy development and an essential step forward on the road towards accession. To borrow a title from another famous movie franchise: the talks that took place in Strasbourg from September 2020 to March 2023, and the outcome of those talks, represent neither the first nor the last episode in the saga of the EU’s accession to the Convention; they do, however, represent ‘A New Hope’.

1. Member of the Legal Service of the European Commission; chief negotiator on behalf of the EU for the 2020–2023 negotiations on the accession of the European Union to the European Convention on Human Rights. This paper is an abridged version of a contribution to a forthcoming European Papers Special Section. I am grateful to Liesbeth A Campo, Megan Anderson, Hans-Jörg Behrens, Julio Baquero Cruz, Friedrich Erlbacher, Stian Øby Johansen, Rick Lawson, Tonje Meinich, Allan Rosas and Irene Suominen for their remarks on an early draft. I also owe a debt of gratitude to my fellow negotiator Mihaela Carpus Carcea for her collegiality and wisdom throughout the negotiations. The views expressed in this paper are in an individual capacity and cannot be attributed to my employer.

2. Editorial comments, Common Market Law Review, (2015) 52, Issue 1, 1-16, at 14.

3. Enshrined, since 2009, as an obligation in art. 6(2) TEU.

4. Council of Europe, EU Accession to the ECHR (‘46+1’ Group)

5. Council of Europe, Final Consolidated Version of the Draft Accession Instruments

The Convention and the EU are both manifestations of the same political and moral enterprise: to make sure that Europe would not repeat the horrors that had taken place on its soil during the twentieth century

II. Lessons from Opinion 2/13

At their origin, the Convention and the EU are both manifestations of the same political and moral enterprise: to make sure that Europe would not repeat the horrors that had taken place on its soil during the twentieth century. However, they pursue that goal with different techniques. The Convention technique is to set minimum standards for the protection of human rights with which the contracting states must comply, and the primary task of the European Court of Human Rights is to supervise them based on individual petitions. By contrast, the Union technique is to integrate political communities into an ‘ever closer union’, and the primary task of the Court of Justice is, together with national courts, to weave the legal fabric that holds the overarching community together.

The Convention technique (of overseeing political communities) and the Union technique (of integrating them) are, generally speaking, complementary, as the long track record of constructive interaction between the two legal systems shows.6 In certain respects, however, they stand in tension with each other. The main areas of tension are well known to anyone who has read Opinion 2/13: mutual trust, advisory opinions, inter-party applications between EU Member States, human rights protection in the Common Foreign and Security Policy, and the attribution of responsibility between the EU and its Member States for the purpose of applying the Convention.7 Opinion 2/13 presses on these trigger points and insists that they be addressed. Not because they are caused by accession, but because accession of the EU to the Convention might otherwise cement the existing situation while at the same time binding the EU inextricably into the Convention system.

Consider, for instance, the much-debated topic of mutual trust in the Area of Freedom, Security and Justice (AFSJ). Throughout the AFSJ, fundamental rights issues are very salient. Fundamental rights considerations can form part of the rationale for requiring mutual trust.8 However, fundamental rights considerations can also prompt

6. On the relationship between EU law and the Convention, see e.g. S. O’Leary, ‘A Tale of Two Cities: Fundamental Rights Protection in Strasbourg and Luxembourg’, Cambridge Yearbook of European Legal Studies, (2018) 3-31.

7. Opinion 2/13 Accession of the European Union to the ECHR, EU:C:2014:2454.

8. See e.g. ECtHR Romeo Castaño v Belgium, App n. 8351/17 [9 July 2019].

difficult questions about the limits of mutual trust. Both the Court of Justice and the European Court of Human Rights have had to grapple with such questions. But the two courts approach the problem from a different frame of reference, which primes them to reach contradictory results, at least in theory. When the Convention’s intergovernmental frame of reference is taken to its extreme, the result is ‘no trust’: each state must be held directly and severally accountable under the Convention, including for having placed trust in the other. When the Union’s constitutional frame of reference is taken to its extreme, the result is ‘blind trust’, because the requesting state and the cooperating state are components of a larger political entity that assumes responsibility under the Convention. In practice, neither court takes its own frame of reference to such an extreme. The European Court of Human Rights acknowledges that EU Member States must give ‘full effect’ to mutual recognition mechanisms established by EU law and, when they do, reviews the compatibility of their actions with the Convention under the rubric of a ‘manifest deficiency’ test.9 The Court of Justice accepts that mutual trust between EU Member States has its limits and that there are circumstances in which fundamental rights concerns preclude the authorities of a Member State from cooperating with the authorities of another Member State.10 Differences in emphasis remain, but on the whole, the case law of the two courts reflects a careful, ongoing search for a middle ground in which each court tries to take the other’s concerns into account.11

9. See ECtHR Avotiņš v Latvia App n. 17502/07 [23 May 2016] and ECtHR Bivolaru and Moldovan v France App n. 40324/16 and 12623/17 [March 2021].

10. E.g. Case C-163/17 Jawo EU:C:2019:218; Joined Cases C-404/15 and C-659/15 PPU Aranyosi and Căldăraru EU:C:2016:198; Case C-699/21 E.D.L. EU:C:2023:295; Case C-578/16 PPU C.K. and Others EU:C:2017:127.

11. A development that raises the stakes for both courts – but also serves as a powerful reminder of the common political and moral enterprise to which they owe their existence – is the worrying phenomenon of ‘rule of law backsliding’ in Europe. This issue was not yet at the forefront when the 2010-2013 accession negotiations took place. It places a strain on the EU legal order and on the AFSJ. See also: C Ladenburger, Y Marinova and J Tomkin ‘Institutional Report’ (2023), ‘Mutual Trust, Mutual Recognition and the Rule of Law’, Proceedings of the XXX FIDE Congress 2023 (Sections 4.1 and 4.2).

Prior to Opinion 2/13, however, the question of how the case law of the two courts on mutual trust would develop was very much up in the air. The pivotal judgments of that period were the ruling of the European Court of Human Rights in M.S.S. v Belgium and Greece (January 2011)12 and that of the Court of Justice in N.S. v Secretary of State for the Home Department (December 2011).13 Both cases concerned the sending of asylum seekers back to the country where they had made their first application for asylum: Greece. In M.S.S. v Belgium and Greece, the European Court of Human Rights found that, at the material time, the asylum process and conditions in Greece suffered from systemic deficiencies. Nevertheless, in its reasoning, the Court emphasised, first and foremost, the need for ‘independent and rigorous scrutiny [by the sending state] of any claim that there exist substantial grounds for fearing a real risk of treatment contrary to art. 3 [ECHR]’.14 In N.S. v Secretary of State for the Home Department, the Court of Justice was asked, essentially, whether a sending state could place blind trust in the EU Member State of destination. The Court answered: ‘no’. In fact, it concluded that, in the circumstances under consideration, EU law precluded the transfer of asylum seekers to Greece. However, the Court of Justice relied entirely on the systemic deficiencies which the European Court of Human Rights had identified in its judgment in M.S.S. v Belgium and Greece. Moreover, the Court of Justice seized the occasion to emphasise that the relevant EU asylum legislation was built on a presumption that the treatment of asylum seekers in all Member States would observe fundamental rights. According to the Court, it would be incompatible with that legislation if ‘any infringement’ would prevent the transfer of an asylum seeker to another EU Member State.15 The Court added: ‘At issue here is the raison d’être of the European Union and the creation of an area of freedom, security and justice.’16

Looking back, it is apparent that, although they had reached the same outcome, the two courts were giving off conflicting signals and that, for the Court of Justice, the concern at stake was existential. Yet, few had it on their radar at the time.17 At any rate, the 2013 accession instruments made no reference to the principle of mutual trust. Accordingly, in Opinion 2/13, the Court of Justice forcefully repeated its concern and acted on it. I would summarise the message that emerges from the Opinion as follows: The principle of mutual trust is a foundational principle of the relationship between the Member States of the EU: it follows from the raison d’être of the EU that EU law should be able to require its Member States to cooperate fully with each other. The accession instruments must preserve

12. ECtHR M.S.S. v Belgium and Greece App n. 30696/09 [21 January 2011].

13. Joined Cases C-411/10 and C-493/10 N.S. and Others EU:C:2011:865. See also the judgment of 10 December 2013 in Case C-394/12 Abdullahi v Bundesasylamt EU:C:2013:813.

14. M.S.S. v Belgium and Greece para. 293. See also ECtHR Tarakhel v Switzerland and Sharifi and Others v Italy and Greece App n. 16643709 [21 October 2014].

15. The Court of Justice again relied exclusively on the ‘systemic deficiency’ criterion in Case C-394/12 Adbullahi EU:C:2013:813 para. 62, but later nuanced its position in PPU C.K. and Others v Slovenia paras 71-75, 92-95 and in Jawo para. 95. See also, in the context of European arrest warrants, Aranyosi and Căldăraru para. 89. For insightful discussions of this case law: K. Lenaerts, ‘La vie après l’avis: Exploring the Principle of Mutual (yet not Blind) Trust’, Common Market Law Review, (2017), 54, Issue 3, pp. 805-840, and D Halberstam, ‘The Judicial Battle over Mutual Trust in the EU: Recent Cracks in the Façade’ (9 June 2016) Verfassungsblog.

16. N.S. and Others cit. para. 83.

17. Asylum law experts had of course noticed that the two European courts were walking out of step: e.g. S. Peers, ‘Tarakhel v Switzerland: Another Nail in the Coffin of the Dublin System?’ (5 November 2014) EU Law Analysis . However, only a few observers expressly recognised the problem as a possible obstacle to EU accession to the Convention: e.g. D. Ritleng, ‘The accession of the European Union to the European Convention on Human Rights and Fundamental Freedoms: A Threat to the Specific Characteristics of the European Union and Union Law?’ (Uppsala Faculty of Law Working Paper 2012:1) .

The Court of Justice – like any constitutional court – must do more than protect fundamental rights; it must keep a political community together

this feature of EU law. In particular, the EU cannot accede to the Convention, insofar as the Convention could oblige one Member State to carry out an independent and rigorous scrutiny of any claim that another Member State, with whom EU law requires it to cooperate, infringes the Convention. The Court of Justice’s concerns about mutual trust exemplify its self-understanding as a constitutional court, which – like any constitutional court – must do more than protect fundamental rights; it must keep a political community together. In fact, that selfunderstanding permeates the entire Opinion.18

While it is tempting to portray Opinion 2/13 as indicative of the Court of Justice’s attitude towards the European Court of Human Rights, it would be more accurate to say that the Opinion reflects the Court of Justice’s keen awareness of the overall network in which it operates. The European Court of Human Rights figures prominently in that network, but larger in number are the nodes of the network occupied by national courts, including national constitutional courts. National courts are the Court of Justice’s direct interlocutors. The Court of Justice exercises authority over them and is also highly dependent on them. It is an intricate relationship, and fundamental rights adjudication often provides the context in which the strength of that relationship is put to the test. How a political community balances competing social goods in a case involving fundamental rights says something important about that community’s self-understanding.19 The basic claim of the Court of Justice is that, in the field of EU law, a choice will have to be struck which derives from the specificity of the EU: ‘The Court is calling on its national counterparts to accept that it, the [Court of Justice], will do and has to do within the [EU] legal order what they, national courts, do, have to do, within the national realms. It is not about high or low standards. It is a call to acknowledge the [EU] as a polity with its own separate identity and constitutional sensibilities which has to define its own fundamental balances – its own core values even if these cannot be dissociated entirely from the context in which the [EU] is situated. The [EU] is its Member States and their citizens. The [EU] is, too, an autonomous identity.’ 20

Thus, in Opinion 2/13, the Court of Justice is essentially asking the European Court of Human Rights to recognise what it is continually asking national courts to accept: that in the field of EU law, fundamental rights adjudication requires an EU-wide view of the relevant polity and of the competing social goods. Seen from that perspective, the Opinion’s central message is as much directed to national highest courts as it is to the European Court of Human Rights. Indeed, Opinion 2/13 is preoccupied, most of all, with what might happen if national constitutional courts and the European Court of Human Rights were to mutually reinforce each other’s state-centric default approach to human rights adjudication.

18. D. Halberstam, ‘“It’s the Autonomy, Stupid!” A Modest Defense of Opinion 2/13 on EU Accession to the ECHR, and the Way Forward’ German Law Journal (2015) 16, Issue 1, pp. 105-146; and J. Baquero Cruz, What’s Left of the Law of Integration: Decay and Resistance in European Union Law (Oxford University Press 2018) pp. 155-166.

19. J. Weiler, The Constitution of Europe: ‘Do the New Clothes Have an Emperor?’ and Other Essays on European Integration (Cambridge University Press 1999) p. 106.

20. Ibidem, at p. 117. The original text refers to the ‘Community’ instead of the ‘EU’.

Troubled by what Opinion 2/13 meant for the prospect of EU accession to the Convention, certain commentators concluded that the Court of Justice fails to take human rights seriously.21 But that is clearly an exaggeration. The Court of Justice regularly weighs fundamental rights arguments in the specific framework of the EU legal order.22 It also takes care to respect the Convention and to harmonise its case law with that of the European Court of Human Rights, as art. 52(3) of the EU Charter of Fundamental Rights requires. Of course, EU accession to the Convention would provide an additional layer of fundamental rights protection, with the European Court of Human Rights taking on the role of ‘fair and impartial spectator’.23 Accession to the Convention is not, however, a precondition for a genuine commitment on the part of the Court of Justice to protect fundamental rights in the EU legal order. Quite the contrary, the imperative to take human rights seriously fits the Court of Justice’s self-understanding as a constitutional court.

Opinion 2/13 translates into a to-do list of 11 items.24 That list, in turn, revolves around three basic ideas. First, insofar as the European Court of Human Rights becomes the ultimate arbiter of whether an act that emanates from EU law complies with the Convention, it must be ensured that the Court of Justice is the penultimate arbiter of whether that act complies with fundamental rights (Idea no. 1). Second, within the scope of EU law, Member States have a special, federal-type relationship between them, which must be acknowledged and preserved within the context of the Convention system, since this is the raison d’être of the EU (Idea no. 2). Finally, only EU law itself (i.e. with the Court of Justice as the ultimate arbiter) can delineate, in a manner that

Opinion 2/13 is preoccupied, most of all, with what might happen if national constitutional courts and the European Court of Human Rights were to mutually reinforce each other’s statecentric default approach to human rights adjudication

21. E.g. E. Spaventa, ‘A Very Fearful Court? The Protection of Fundamental Rights in the European Union after Opinion 2/13’ Maastricht Journal of European and Comparative Law (2015) 22, issue 1, pp. 35- 56.

22. A. Rosas, ‘The Court of Justice of the European Union: A Human Rights Institution?’, Journal of Human Rights Practice (2022) 14, issue 1, pp. 204-214.

23. The term is borrowed from A. Smith, The Theory of Moral Sentiments, 1759. On the importance, in the context of justice, of Smith’s device of the ‘impartial spectator’: A Sen, The Idea of Justice (Allen Lane 2009).

24. (1) Art. 53 ECHR (paras 186-189); (2) mutual trust (paras 191-195); (3) advisory opinions under Protocol No 16 ECHR (paras 196-200); (4) inter-party applications under art. 33 ECHR (paras 201-213); (5) the co-respondent mechanism & division of competences (paras 220-225); (6) reservations under art. 57 ECHR (paras 226-228); (7) joint responsibility (paras 229-234); (8) initiating the prior involvement procedure (paras 236-240); (9) systematic information for the purposes of the prior involvement procedure (para. 241); (10) the prior involvement procedure & secondary law (paras 241-244); and (11) acts in the area of the Common Foreign and Security Policy (paras 249-257).

binds the EU and its Member States, the scope of EU law and thus, by implication, the division of powers between the EU and its Member States (Idea no. 3). Each of these ideas is perfectly logical when seen through a constitutional lens. They express a valid and profound concern for the preservation of the project of European integration, whose unique feature is precisely that, unlike the Convention, it challenges the traditional notion of the nation state as the ultimate political unit. Fundamentally, the EU and the Convention are two systems stemming from a shared moral and political endeavour, each approaching that endeavour from its own perspective. The EU legal system integrates political communities; the Convention system oversees political communities. Reconciling these two perspectives was the main challenge of the negotiations.

III. The Provisional Agreement of 17 March 2023

EU accession to the Convention would provide an additional layer of fundamental rights protection, with the European Court of Human Rights taking on the role of ‘fair and impartial spectator’

On 17 March 2023, the 46+1 Group – the Strasbourg-based forum for the negotiations25 – reached a provisional agreement on a revised package of accession instruments that seeks to address all issues arising under Opinion 2/13, except the issue of human rights protection in the Common Foreign and Security Policy (CFSP). I will briefly outline the main changes the Group made to the draft accession instruments.

A first set of amendments relates to the ‘co-respondent mechanism’.26 This is the procedural device that makes it possible for the EU to be held accountable alongside its Member States in situations where an EU Member State implements EU law.27 At present, when a Member State implements EU law, the European Court of Human Rights can, if it finds a violation, only rule against that Member State. The EU is treated as a third party and will not be held liable if the Court finds a violation of the Convention. As a result, a Member State might get caught between its obligations under EU law and those under the Convention. This would be problematic for everyone involved. After accession, the co-respondent mechanism will enable the EU to participate systematically in the proceedings in situations where an EU Member State implements EU law. If the European Court of Human Rights then finds a violation, the EU will be held liable under the Convention together with the respondent Member State and must help remedy the situation. The co-respondent mechanism already featured in the draft accession agreement of 2013. However, some alterations were needed in the light of Opinion 2/13, mainly to avoid that the European Court of Human Rights would have to take a binding decision about who is accountable for a violation

25. The number ‘46’ stands for the Member States of the Council of Europe; ‘+1’ stands for the European Union. The group was called the ‘47+1 Group’ until Russia’s exclusion from the Council of Europe, in March 2022, due to its military aggression against Ukraine.

26. Art. 3(2), (3), (5), (6) and (7) of the revised Agreement and paras 60-67, 68 and 71 of the Explanatory Report.

27. And for the Member States to be held accountable alongside the EU in the event the European Court of Human Rights were to rule that a provision in EU primary law (notably the EU Treaties) is incompatible with the Convention.

of the Convention based on its own views about the division of powers between the EU and its Member States. Accordingly, the revised accession instruments place the responsibility for triggering the EU’s co-respondent status clearly in the hands of the EU.28 Furthermore, if the Court finds a violation, the Member State and the EU will always be jointly liable.29 This set of amendments corresponds to Idea no. 3 mentioned above. A second, smaller set of amendments relates to the ‘prior involvement procedure’. This is a procedural device according to which, in cases that are about the compatibility of EU law with the Convention, the European Court of Human Rights can temporarily suspend the proceedings to make sure that the Court of Justice is ceased of the matter first. The prior involvement procedure aims to ensure that, in matters of EU law, the Court of Justice has spoken before the European Court of Human Rights fulfils its role under art. 34 ECHR, in full respect of the Convention principle of subsidiarity. Again, this mechanism already featured in the draft accession agreement of 2013. A few refinements had to be introduced, however, to help ensure that no eligible cases would slip through the net.30 This set of amendments corresponds to Idea no. 1.

A third set of amendments relates to cases brought by one High Contracting Party to the Convention against another pursuant to art. 33 ECHR (‘inter-party applications’). Under EU law, when EU Member States have disputes with each other about the interpretation or application of EU law, or when there is a dispute between a Member State and an EU institution, the dispute must be settled within the EU, before the Court of Justice, using the procedures for settling disputes that exist under the EU Treaties.31 According to Opinion 2/13, the accession agreement ought to have reflected this feature of the EU legal order by stipulating that art. 33 ECHR cannot be used for disputes between EU Member States, or between EU Member States and the EU, concerning the application of the Convention within the scope ratione materiae of EU law. The revised accession agreement contains additional provisions to that effect.32 This set of amendments corresponds to Ideas no. 2 and no. 3.

A fourth, fifth and sixth set of amendments each introduce new provisions to deal with matters that came to light in Opinion 2/13 and which the draft accession agreement of 2013 did not address. The first of these new provisions relates to the matter of mutual trust. It stipulates that the accession shall not affect the application of the principle of mutual trust within the EU.33 This amendment corresponds to Idea no. 2. The second is about art. 53 ECHR. Art. 53 ECHR essentially says that the Convention sets a minimum level of protection of human rights and that a High Contracting Party is free to establish a higher level of protection. The new provision safeguards the possibility for EU law to set a uniform standard of protection that is binding on EU Member States, provided that that standard does not fall short of the minimum level of protection guaranteed by the Convention.34 This amendment also corresponds to Idea no. 2. Lastly, there is a new provision about the relationship between the mechanism established by Protocol No. 16 to the Convention and the preliminary ruling procedure provided for

28. Art. 3(5) and (6) of the revised Agreement and paras 60-67 of the Explanatory Report.

29. Art. 3(7) of the revised Agreement and para. 71 of the Explanatory Report.

30. Art. 3(2) and (3) of the revised Agreement and paras 68, 75-78 of the Explanatory Report.

31. Art. 344 TFEU. See Case C-459/03 Commission v Ireland (MOX plant) EU:C:2006:345.

32. Art. 4(3) and (4) of the revised Agreement and paras 80-85 of the Explanatory Report.

33. Art. 6 of the revised Agreement and paras 87-88 of the Explanatory Report.

34. Art. 1(9) of the revised Agreement and para. 38 of the Explanatory Report.

in art. 267 TFEU. Protocol No. 16 contains a procedure that allows the European Court of Human Rights to give advisory opinions to national courts on ‘questions of principle relating to the interpretation or application of the rights and freedoms defined in the Convention or the protocols thereto’.35 Only a ‘highest court or tribunal’ of a High Contracting Party that has ratified Protocol No. 16 may refer requests to the European Court of Human Rights for an advisory opinion. However, when a question relates to EU law, the highest courts and tribunals of EU Member States are typically under an obligation to request a preliminary ruling from the Court of Justice, in accordance with art. 267 TFEU.36 Indeed, in matters of EU law, the Court of Justice is the apex court in the EU’s domestic legal system. The new provision accordingly clarifies that, in matters of EU law, national courts of EU Member States are not a ‘highest court or tribunal’ within the meaning of Protocol No. 16.37 This amendment corresponds to Idea no. 1.

A seventh and final set of amendments is unrelated to Opinion 2/13. It concerns voting in the Committee of Ministers of the Council of Europe. When the European Court of Human Rights rules that a High Contracting Party has violated the Convention, that Party must remedy the violation under the supervision of the Committee of Ministers. After accession, the Committee of Ministers will also supervise the implementation by the EU of a judgment of the European Court of Human Rights if the Court has found the EU to be in breach of the Convention. In those situations, the EU and its Member States will be obliged under the EU Treaties to vote in unison.38 The problem is that, under the Committee of Minister’s normal voting rules, the EU and its Member States together hold enough votes to adopt almost any decision, regardless of how the others would vote. The draft accession instruments of 2013 acknowledged this problem and introduced special voting arrangements to address it. However, during the 2020-2023 negotiations, non-EU Member States pointed to inadequacies in these voting arrangements. Those arrangements were therefore further adjusted to ensure that the EU and its Member States cannot, by voting in unison, determine how the Committee of Ministers decides in cases regarding the EU.39

One important and difficult matter remains as yet unresolved: human rights protection in the CFSP. With respect to acts in the CFSP, the EU Treaties establish a limitation on Court of Justice’s powers of judicial review.40 The precise scope of this limitation is a matter of ongoing debate and litigation. The Court of Justice plainly has jurisdiction to rule on actions for annulment and damages claims regarding individual ‘restrictive measures’ (sanctions) imposed by the EU. But it is unclear, for instance, to what extent the Court of Justice has jurisdiction to hear actions against measures adopted by the EU in the context of civil or military missions abroad that are

35. Art. 1(1) of Protocol No. 16 to the Convention.

36. See Case C-561/19 Consorzio Italian Management EU:C:2021:799 and Case 314/85 Foto-Frost EU:C:1987:452.

37. Art. 5 of the revised Agreement and para. 86 of the Explanatory Report. The 46+1 Group also amended art. 1(2) of the draft accession agreement in order to permit the EU to accede to Protocol No. 16 if it would want to.

38. See Article 218(9) TFEU.

39. Art. 8 of the revised Agreement, Rule 18 (Appendix 3), and paras 96-107 of the Explanatory Report.

40. Arts. 24(1) TEU and 275 TFEU.

One important and difficult matter remains as yet unresolved: human rights protection in the CFSP

under EU command.41 At issue here is one of the basic tenets of Opinion 2/13: insofar as the European Court of Human Rights becomes the ultimate arbiter of whether an EU act complies with the Convention, it must be ensured that the Court of Justice is the penultimate arbiter of whether that act complies with fundamental rights (Idea no. 1). Consequently, the jurisdiction of the European Court of Human Rights in respect of acts of the EU cannot be more wide-ranging than that of the Court of Justice. This issue does not lend itself very well to resolution by the 46+1 Group given that it would be undesirable to reduce the jurisdiction of the European Court of Human Rights. Moreover, the question of the precise scope of the Court of Justice’s jurisdiction in respect of alleged human rights violations in the CFSP is currently being considered in two pending court cases.42 The Advocate General delivered her Opinion in those cases on 23 November 2023. According to her, the Court of Justice must have jurisdiction ‘to ensure that CFSP decisions do not cross red lines imposed by fundamental rights’.43 If the Court were to follow the Opinion, it would greatly improve the prospect of EU accession to the Convention.

IV. Conclusion

Those who have read the negotiating documents carefully may have noted that, for almost every issue under negotiation, the 46+1 Group ultimately found a solution that was different from what the EU originally had in mind. One possible explanation for that might be that my colleagues and I did a terrible job. Not surprisingly, I prefer a different explanation. In my experience, the negotiations were an exercise in collective problem solving in which the combined wisdom of the Group prevailed over the ideas of any one party. Clearly, it is much too soon to declare ‘mission accomplished’. Yet, the 2020–2023 negotiations were a necessary and, I hope, decisive step forward on the road towards EU accession to the Convention.

The negotiations were an exercise in collective problem solving in which the combined wisdom of the Group prevailed over the ideas of any one party

41. For a more in-depth discussion, see P. Van Elsuwege, ‘Judicial review and the Common Foreign and Security Policy: Limits to the gapfilling role of the Court of Justice′ Common Market Law Review (2021) 58 Issue 6, pp. 1731-1760.

42. Case C-351/22 Neves 77 Solutions EU:C:2023:907 and Joined Cases C-29/22P and C-44/22 P KS and KD EU:C:2023:901.

43. Opinion of AG Ćapeta in KS and KD cit. point. 155.