Accession of The EU To The ECHR

Common Market Law Review 50: 1305–1332, 2013.
© 2013 Kluwer Law International. Printed in the United Kingdom.
ACCESSION OF THE EU TO THE ECHR: THE RATIONALE FOR THE

ECJ’S PRIOR INVOLVEMENT MECHANISM
ROBERTO BARATTA*
1. Introduction
Pursuant to Article 6(2) TEU, the Union “shall accede to the European
Convention for the Protection of Human Rights and Fundamental Freedoms”.
The Treaty of Lisbon actually mandates the institutions to join the ECHR. The
formula “shall accede” is arguably a qualified commitment of means, rather
than a genuine obligation of result: the finalization of the EU accession indeed
requires several conditions to be met.1 Mirroring the EU provision, in 2010 a
new Article 59(2) ECHR (“the European Union may accede to this
Convention”) came into force. It lays out the Convention’s legal basis for the
first non-state entity to join the Council of Europe’s judicial system for the
protection of human rights.2
* Full Professor of International Law and European Law (University of Macerata, Italy). On
leave from University. Currently, legal adviser at the Permanent Representation of Italy to the
European Union (Brussels). The views expressed in this paper are strictly personal. This text
was completed early April 2013 and has been slightly updated to include the Draft revised
agreement on the Accession of the European Union for the Protection of Human Rights and
Fundamental Freedoms, 47+1(2013)08 rev 2, Strasbourg 10 June 2013, available through
<www.coe.int>.
1. Strictly speaking the wording shall accede cannot be considered as a pure obligation to
join, as is argued; cf. Benoit-Rohmer, “L’adhésion de l’Union à la Convention européenne des
droits de l’homme”, 19 Journal de droit européen (2011), 285; Jacqué, “L’adhésion à la
Convention européenne des droits de l’homme”, <www.europarl.europa.eu/document/acti
vities/cont/>, para 1, who envisages an action for failure to act should the relevant institution not
join the ECHR. The accession actually requires an agreement with the Council of Europe and
its 47 parties (20 not being EU Member States), aimed at defining a set of conditions which
must be negotiated beforehand. Indeed, the accession agreement is subject, on the one hand, to
a revision of the ECHR and, on the other hand, to specific conditions laid down in Art. 6(2) TEU
(“the Union shall accede to the European Convention for the Protection of Human Rights and
Fundamental Freedoms. Such Accession shall not affect the Union’s competences as defined in
the Treaties”), as well as in Protocol No. 8 annexed to the Treaties. It seems worth recalling that
the Treaty establishing a Constitution for Europe used a softer wording: “the Union shall seek
accession …”. On 4 July 2013, the ECJ was requested to rule on the compatibility with the
Treaties of the Draft agreement as negotaited up to April 2013 (see infra section 4); Opinion
2/13, pending.
2. Protocol 14 (adopted in 2004) to the ECHR has been eventually ratified by Russia and
entered into force on 1 June 2010.
1306 Baratta CML Rev. 2013
The accession agreement has to tackle a number of issues. Several

adaptations of the ECHR system are needed, whilst account must be taken of
the specificity of the EU legal order. One of the most controversial questions
is how to integrate two international judicatures in a harmonious and efficient
combination, without affecting the Strasbourg Court’s power to have the last
say in a given case of alleged violation of Convention rights calling into
question an EU law provision. In this regard, a prior involvement mechanism
of the European Court of Justice has been proposed in situations when the
alleged violation involves national judicial proceedings. The present paper
focuses on this issue, with a twofold aim. It seeks to demonstrate that the prior
involvement mechanism does match both the ECHR’s features (section 5),
and the precise conditions imposed by EU primary law on the accession
process (section 6). It further argues that the prior involvement rule does not
require a revision of the EU Treaties (section 7). Conclusions will then be
drawn (section 8). As a necessary point of departure, some of the legal
implications of the accession will be outlined (section 2); a description is
offered of the main issues raised by the EU accession (section 3), and the prior
involvement mechanism, as it stands in the current Draft accession agreement
(section 4).
2. The legal implications of the EU accession: An outline
The implications of Article 6(2) TEU are manifold. First, the ECHR is deemed
to acquire a new legal status within the EU legal order. Initially, it was a special
source of inspiration for the ECJ construction on human rights, and then an
element of direct referral.3 After accession, the ECHR will be a formally
binding source of law.4 Second, that provision fills the competence gap
highlighted by Opinion 2/94 – a systemic lacuna in the scheme of attributed
powers which the “flexibility clause” could not fix either, as the ECJ stated.5
3. Case 222/84, Johnston, [1986] ECR 1651, para 18; Joined Cases 46/87 & 227/88,
Hoechst v. Commission, [1989] ECR 2859, para 13; Case C-274/99 P, Connolly v. Commission,
[2001] ECR I-1611, para 37; Case C-540/03, [2006] ECR I-5769, paras. 36 and 52; C-307/05,
Festersen, [2007] ECR-1129, paras. 35–36. Simon, “Des influence réciproques entre CJCE et
CEDH:: ‘Je t’aime, moi non plus’?”, available at: <www.cairn.info/revue-pouvoirs-2001-1-
page-31.htm>.
4. For a different approach, see Potteau, “Quelle adhésion de l’Union européenne à la
CEDH pour quel niveau de protection des droits et de l’autonomie de l’ordre juridique de
l’UE?”, 77 R.G.D.I.P. (2011), 94–95.
5. In Opinion 2/94, [1996] ECR I-1795, paras. 34–35, the ECJ made it clear that no Treaty
provision conferred any general power to enact rules on human rights or to conclude
international conventions in this field. In the Court’s eyes, accession implied a substantial
change in the Community system for the protection of human rights, and entailed the entry of
ECHR prior involvement 1307
Third, the EU’s prospective membership of the ECHR, as set out by primary
law,6 would not depend upon another (after Opinion 2/94) prior revision of the
EU Treaties. Fourth, the accession would be comprehensive – neither primary
law en bloc,7 nor a given area of EU activity may be excluded.8 In the same
vein, any form of accession not implying the jurisdictional control of the
Strasbourg Court (hereinafter, also ECtHR) would hardly be conceivable.9 By
and large, a carve-out aimed at delimiting the EU’s accession actually draws
no evident ground in Article 6(2) TEU. This is not to say, however, that the EU
may not express some reservations in accordance with the Strasbourg Court
jurisprudence,10 when signing or, at the latest, ratifying the accession
agreement, though these can only be quite limited in scope. In accordance
with Article 57 of the ECHR, the EU will be permitted to unilaterally restrict
the obligation arising under the Convention provided that its reservations have
no open end or general character.
Once achieved, the EU’s accession will foster the protection of human
rights in Europe. Certainly, its legal order is already founded on the inviolable
and inalienable rights of natural and legal persons.11 Pursuant to Article 6
TEU, the Charter has the same legal value as the Treaties, and human rights as
general principles are reaffirmed.12 The ECJ’s key role in ensuring a high level
the Community into a distinct international institutional system, as well as the integration of all
the provisions of the ECHR into the Community legal order. The Opinion showed a competence
gap that could only be solved through a Treaty amendment.
6. Infra, section 5.
7. Tulkens, “Les aspects institutionnels de l’adhésion de l’UE à la CEDH”, 81
L’Observateur de Bruxelles (2010), 19, 21; Lock, “EU accession to the ECHR: Implications for
judicial review in Strasbourg”, 35 EL Rev. (2010), 777, 783; Gragl, “Strasbourg’s external
review after the EU’s accession to the European Convention on Human Rights: A subordination
of the Luxembourg court”, 17 Tilburg Law Review (2012), 32, 53.
8. Potteau, op. cit. supra note 4, 89, points out that the French Senate pleaded for the
exclusion of CFSP acts from the scope of the EU accession.
9. The Steering Committee for Human Rights mentioned this option on a theoretical basis
and from a different perspective, in 2002: Technical and Legal Issues of a Possible EC/EU
Accession to the European Convention on Human Rights, CDDH(2002)010 Addendum 2, 53rd
meeting, 25–28 June 2002, 14.
10. Baratta, “Should invalid reservations to human rights treaties be disregarded?”, 11 EJIL
(2000), 413; Pellet and Müller, “Reservation to human rights treaties: Not an absolute evil …”,
in Fastenrath et al. (Eds.), From Bilateralism to Community Interest – Essays in Honour of
Judge Bruno Simma (OUP, 2011), p. 521, for the relevant case law and bibliography therein
cited.
11. Arts. 2 and 6 TEU.
12. Political institutions act daily to streamline human rights: Communication on a strategy
for the effective implementation of the Charter of Fundamental Rights by the European Union,
COM(2010)573 final. In this document, the Commission stresses that the EU must be
exemplary when protecting Charter fundamental rights (at 4). It intends to ensure that Member
States respect the Charter when implementing EU law, even through infringement procedures
(at 9). It is worth remembering that on 30 March 2007 the EU signed its first major international
protection of human rights can hardly be doubted, once it realized – in the late
1960s – that the exercise of (progressively increasing) competences could
bring about violations of fundamental rights.13 Yet the accession will confer
on individuals the right to lodge applications directly against the EU. The
current situation of vicarious and indirect liability of Member States will no
longer stand.
It is true that the Strasbourg Court has ruled out the argument according to
which the transfer of competences to a supranational organization excludes
States’ liability under Article 1 ECHR, both for the consequences of the treaty
establishing the organization and the acts adopted by that organization. After
Cantoni14 and Matthews,15 the ECtHR barely addresses that ratione personae
contention often suggested by the EU State Governments sued for EU related
cases. The implied assumption is that, leaving aside some civil servants
disputes,16 the Strasbourg Court has competence to estsblish the liability of
the Member States, irrespective of whether this is of a collective17 or
human rights treaty – the UN Convention on the Rights of Persons and Disabilities. The EU
ratified the treaty on 23 Dec. 2010 (De Búrca, “The EU in the negotiation of the UN disability
convention”, 35 EL Rev. (2010), 174).
13. Case C-305/05, Ordre des barreaux francophones et germanophone and Others, [2007]
ECR I-5305, paras. 26, 29; Joined Cases C-402 & 415/05, P Kadi and Al Barakaat International
Foundation v. Council and Commission, [2008] ECR I-6351, paras. 283, 308; Joined Cases
C-92 & 93/09, Volker und Markus Schecke GbR and Hartmut Eifert v. Land Essen, [2010] ECR
I-11063, para 44.
14. Arguing from Cantoni v. France, Appl. No. 17862/91, judgment of 15 Nov. 1996,
ECHR Reports 1996-V 1614, if the implementing national measure is discretionary, the act is
attributed to the EU Member State. Ultimately, in this case the Strasbourg Court did not find a
violation of the ECHR.
15. In Matthews v. The United Kingdom, Appl. No. 24833/94, judgment of 18 Feb. 1999,
ECHR 1999-1, 34–35, the Strasbourg Court held that it had no competence to challenge the acts
of the Union since the EU was not a Contracting party. However, the “Convention does not
exclude the transfer of competences to international organizations provided that Convention
rights continue to be ‘secured’. Member States’ responsibility therefore continues even after
such a transfer” (para 32). As to an alleged violation issuing from international instruments
which were freely entered into by the United Kingdom, the Court noted that these instruments
could not be challenged before the ECJ given their primary law nature. Then it added that the
United Kingdom, “together with all the other parties to the Maastricht Treaty, is responsible
ratione materiae under Article 1 of the Convention and, in particular, under Article 3 of Protocol
No. 1, for the consequences of that Treaty” (para 33).
16. See infra, in this section.
17. It is a collective liability if there are no implementing measures required from Member
States under EU law: e.g. Guérin Automobiles v. 15 Etats de l’Union européenne, Appl. No.
51717/99, judgment of 4 July 2000; DSR-Senator Lines GmbH v. 15 Member States of the EU,
Appl. No. 56672/00, judgment of 10 March 2004; SEGI and Gestoras Pro-Amnistia v. 15
Member States of the EU, Appl. No. 6422 & 9916/02, judgment of 23 May 2002; Emesa Sugar
N.V. v. Netherlands, Appl. No. 62023/00, judgment of 13 Jan. 2005. These rulings have in
common that the Strasbourg Court did not address the ratione personae issue related to the EU
act which was at the origin of the dispute. It stated instead that the plea was not covered by the
individual18 nature. Currently they are liable either for violations committed
by the supranational institution to which they have transferred powers or for
their own implementing acts, namely when they are discretionary.
On the whole, the number of cases in which the Strasbourg Court has
actually established that EU States infringed Convention rights in EU related
affairs, is relatively low. Nonetheless, accession can be considered a step
forward even from their standpoint. EU States may not like being held (jointly
or individually) liable for conduct over which, in some cases at least, they
exercised no effective or factual control or, more generally, for an act that does
not strictly relate to their jurisdiction within the meaning of Article 1 ECHR.
From the viewpoint of a single Member State, such a situation may occur for
acts or conduct carried out by EU agents, but also for the conduct of an organ
of another Member State, exercised under the control of the supranational
organization at the disposal of which it has been placed. As a matter of policy,
it is unconvincing to consider an EU State responsible for conduct over which
it may have little control or no control at all. These issues would however be a
thing of the past. After accession, a specialized European judiciary will ensure
an external and direct review of EU law (primary or secondary) provisions, as
well as acts of the institutions (third degree level, such as delegated or
implementing acts) or any other kind of acts adopted by bodies or entities
producing legal effects vis-à-vis individuals.
A further gap in the external judicial review will be filled as to the disputes
concerning labour law relationships between the EU and its employees: they
too will fall within the power of the Council of Europe judicature.19 Hence, the
value of accession is not merely symbolic and aesthetic,20 even though its
Convention’s guarantees. It is worth mentioning that in the realm of competition law it is

claimed that the Commission resists the full force of fundamental rights: Editorial comments,
“Towards a more judicial approach? EU antitrust fines under the scrutiny of fundamental
rights”, 48 CML Rev. (2011), 1405.
18. An individual liability arises when the EU Member State adopted a concrete
implementing act outside the scope of the EU obligation: e.g. M.S.S. v. Belgium and Greece,
Appl. No. 30696/09, judgment of 21 Jan. 2011, 338–340.
19. As is known, the Strasbourg Court actually denied the responsibility of the members of
an international organization in situations where they are not involved, directly or indirectly, in
the act which was at the origin of the alleged breach: Boivin v. 34 State members of the Council
of Europe, Appl. No. 73250/01, decision of 9 Sept. 2008. In this case the ECtHR stated that,
unlike Matthews and Cantoni, in which the State or States concerned had been involved directly
or indirectly, the applicant cannot be said to have been “within the jurisdiction” of the
respondent States for the purposes of Art. 1 of the Convention. Likewise, Connolly v. 15
Member States of the EU, Appl. No. 73274/01, decision of 9 Dec. 2008. In both cases, the Court
held that the applications were inadmissible ratione personae.
20. Weiler, Certain Rectangular Problems of European Integration (Volume I), European
Parliament. Political Series W-24, Luxembourg, 1997, 6–7.
political significance should not be underestimated.21 Being part of the

Strasbourg system will indeed enhance the credibility of the EU, particularly
when promoting human rights and democracy in its external relations and
Common Foreign and Security Policy activities.22 Some arguments on the
asserted rhetoric and instrumental use of human rights by the EU23 are deemed
to lose strength. Thus, accession will improve protection of human rights
through an external control, which up until now was absent.24 It comes as no
surprise that the European Parliament strongly endorses accession.25
3. The main issues raised by the accession
Since the very entry into force of the Treaty of Lisbon, EU accession to the
ECHR has been on the Council agenda. On 4 June 2010 that institution
approved a decision authorizing the Commission to negotiate an accession
agreement. On 7 July 2010 the Commission launched negotiations. The
process has almost come to an end at the time of writing: a draft agreement
exists.26 First and foremost, it raises many complex legal issues.27 The EU is
21. According to the Commission, the accession “will introduce an additional judicial
control in terms of protecting fundamental rights in the EU. Accession will further embed a
common culture of fundamental rights in the EU, and show that the EU puts its weight behind
the Strasbourg system of rights protection. It will also ensure that there is a harmonious
development of the case law of the Court of Justice and the European Court of Human Rights”,
Report from the Commission – 2010 Report on the Application of the EU Charter of
Fundamental Rights, 11–12.
22. Bartels, Human Rights Conditionality in the EU’s International Agreements (OUP,
2005), passim.
23. Williams, EU Human Rights Policies: A Study in Irony (OUP, 2005), passim, claims that
in the EU the general principle of respect for human rights is based on a double standard:
internally human rights are contingent since scrutiny is erratic and even casual, whilst
externally, the EU approach is completely different because human rights are broad in concept,
and collective notions of rights are accepted and promoted. For a critical evaluation of human
rights as applied in the EU see also Amnesty International, The EU and Human Rights: Making
the Impact on People Count (2009) www.amnesty.eu/static/documents/2009/EU_and_Human_
Rights_Making_the_Impact_on_People_Count.pdf.
24. Scheeck, “The relationship between the European Courts and integration through
human rights”, 65 ZaöRV (2005), 837, 846.
25. European Parliament resolution on the impact of the Charter of Fundamental Rights of
the European Union and its future status (2002/2139(INI), O.J. 2003, C 300E/436.
26. Its course and progress can be detected from a number of documents the Council of
Europe, setting out some provisional results, including several draft texts of the accession
agreement, available on <hub.coe.int/web/coe-portal/european-union>. The agreement is the
subject of a request for an Opinion by the ECJ under Article 218(11) TFEU, see supra note 1.
27. For a general overview of the issues raised by the EU accession, see De Schutter, “Les
aspects institutionnels de l’adhésion de l’Union européenne à la Convention européenne des
droits de l’homme”, Note à l’attention de la Commission institutionnelle du Parlement
not a State, contrary to all other contracting parties to the ECHR and its
accession entails far more difficulties than a unilateral declaration of
accession made by a State entity. The accession agreement is expected to
contain amendments to the ECHR and its Protocols, as it was rightly outlined
when the new Article 59(2) ECHR was shaped28 and even earlier, in 2002, by
the Steering Committee for Human Rights.29 They are procedural, formal and
substantial adaptations. Administrative issues concerning the contribution of
the EU to the budget of the Council of Europe, not to mention the EU
participation in the bodies of ECHR, have been dealt with.
The scope of the accession has been defined, covering the Convention and
the Protocols ratified by all EU States. The agreement has to harbour the basic
features of the ECHR as they stand. According to Article 6(3) TEU and
Protocol No 8, the accession notably requires, on the one hand, that the
specificity of the EU30 be taken into account, and on the other hand that its
complex system of division of competences be preserved.
The autonomy of the EU legal order should not be affected.31 In that respect,
the accession agreement is deemed to uphold the exclusive competence of the
ECJ with regard to the disputes between EU Member States, and those
between them and the institutions, to the extent that they fall within the
scope of the EU Treaties.32 To put it differently, these disputes should be
outside the scope of the Accession Agreement, as Article 3 Protocol No 8
seems to imply.
européen en vue de l’audition du 18 mars 2010, <www.europarl.europa.eu/document/acti

vities/cont/201003/>, passim; Benoit-Rohmer, op. cit. supra note 1, 385; Gaja, “Accession to
the ECHR”, in Biondi, Eeckhout and Ripley (Eds.), EU After Lisbon (OUP, 2012), p. 180; Lock,
“End of an epic? The draft agreement on the EU’s accession to the ECHR”, 31YEL (2012), 162.
28. See the explanatory report to Protocol No. 14, 101.
29. Technical and Legal Issues of a Possible EC/EU Accession to the European Convention
on Human Rights, cited supra note 9.
30. Mengozzi, “Les caractéristiques spécifiques de l’Union européenne dans la perspective
de son adhésion à la CEDH”, (2010) Dir. Un. Eur., 231.
31. Potteau, op. cit. supra note 4, 100; Lock, op. cit. supra note 7, 781; Lock, “Walking on
a tightrope: The draft accession agreement and the autonomy of the EU legal order”, 48 CML
Rev. (2011), 1025; Gragl, op. cit. supra note 7, 32.
32. Potteau, op. cit. supra note 4, 97–98. Since primary law principles stand in the way of
conferring the ECJ’s exclusive jurisdiction to an international court by way of agreement
concluded by the EU (Case C-459/03, Commission v. Ireland, [2006] ECR-I, 4635, para 123,
and the Opinion of A.G. Poiares Maduro in that case, para 41), one may query whether the
accession agreement would make it clear that the disputes in question do not fall within the
jurisdiction of the ECtHR pursuant to Art. 3 Protocol No 8 (Tizzano, “Les Cours européennes
et l’adhésion de l’Union à la CEDH”, (2011) Dir. Un. Eur., 35). This issue is different from that
concerning a complaint to the EU Commission which does not stand in the way of an
application lodged before the Strasbourg Court: Karoussiotis v. Portugal, Appl. No. 23205/08,
judgment of 1 Feb. 2011, paras. 59–77. According to the ECtHR, the infringement procedure
under EU law cannot be equated to an individual application pursuant to Art. 34 ECHR.
One can even argue that that power to adjudicate pertains to the founding
principles of the EU supranational system which accession is expected to
preserve.33 Certainly, the introduction of an innovative form of joint
participation – the co-respondent mechanism – is essentially aimed at tackling
the situation in which an EU law provision or measure is implemented by its
Member States, whether or not the latter enjoy some room for discretion.34 But
again this mechanism does not seem to be conceived for disputes involving
Member States and EU institutions.
Finally, it is necessary to shape a sound relation between the two Courts
aimed at preserving both the powers and final jurisdictional role of the
Strasbourg Court, as well as the key functions of the ECJ in the European
integration process. In this regard, the so-called “prior involvement of the
ECJ” has been a controversial element of the negotiation.35 The issue was
debated soon after the entry into force of the Treaty of Lisbon, at first
receiving quite a cautious support in Brussels given its peculiarity. However,
the mechanism, as it presently stands, is designed to allow the priority of the
internal control over the Strasbourg Court’s external supervision. In other
words, the Luxembourg Court will rule on the validity of an EU provision, act
and measure, as well as on the interpretation of primary law, when the issue of
their compliance with the Convention rights is still pending in Strasbourg.
The prior involvement mechanism raises at least three issues to be assessed
from the standpoint both of the ECHR and the EU legal order. First, one may
query whether it contradicts the precise substantive nature of the ECHR’s
judicial control. Second, it is necessary to seek its relevant justification within
the EU legal framework. Third, if these hurdles are passed, the argument that
its introduction would require a revision of the EU Treaties, needs to be
33. Szymczak, “Arx tarpeia capitol proxima . . . Bref retour sur l’adhésion de l’Union
européenne à la Convention européenne des droits de l’homme”, 552 Revue de l’Union
européenne (2011), 641, argues that the accession might even adversely affect the
well-established judicial principle of primacy of EU law over national law.
34. The fact that the co-respondent mechanism is applied only when an EU law provision is
implemented by its Member States clearly entails that the EU cannot be involved in cases in
which EU law does not govern the relationship between the ECHR and the legal systems of the
Member States (see e.g. Case C-571/10, Kamberaj, judgment of 24 Apr. 2012, nyr, para 59).
However, the ECJ seems sometimes to construe the very notion of a national law implementing
a secondary EU provision in quite a broad way (Case C-617/10, Åkerberg Fransson, judgment
of 26 Feb. 2013, nyr, paras. 16–27). See generally Cortés Martin, “Sur l’adhésion à la CEDH et
la sauvegarde de l’autonomie de l’ordre juridique de l’Union dans l’identification du défendeur
pertinent: Le mécanisme du codéfendeur”, (2011) Revue du droit de l’Union européenne, 615.
35. For a critical approach towards the prior involvement of the ECJ through the means of
preliminary reference requisite, De Schutter, op. cit. supra note 27, para 2; Lock, op. cit. supra
note 7, 791–792.
addressed.36 Should that alleged consequence be true, that would hardly be

consistent with the obligation to accede, as outlined above.
In strict relation to these observations, the prior involvement attracted
further criticisms. On the one hand, it was claimed that it accords a privilege to
the EU in comparison to the States parties of the ECHR.37 For, in essence, their
national supreme courts are routinely not required to rule before the ECtHR
does so in a concrete application pending before it. On the other hand, it was
submitted that the ECJ ruling could jeopardize the autonomy of the Strasbourg
Court for it would hardly contradict a previous ruling of the ECJ.38 All these
unfavourable comments explain the theoretical and practical interests
underpinning the “prior involvement” mechanism.
4. The prior involvement mechanism under the Draft agreement
Article 3(6) of the Draft agreement establishes the prior involvement of the
ECJ provided that two conditions are fulfilled: i) the EU is co-respondent in
the proceedings pending before the Strasbourg Court; and ii) the ECJ has not
yet assessed the compatibility with the Convention rights at issue of a
“provision of European Union law” (Art. 3(6) first sentence).39 These
conditions are conceived as cumulative: both must be fulfilled for the
possibility of a prior ruling to be given to the ECJ.
The first normative element provides that the EU Member State is the
respondent party before the ECtHR, while the EU is the co-respondent
because the case calls into question the compatibility with the rights at issue
defined in the Convention (or in the protocols to which the EU will accede) of
a provision of EU law. The underlying assumption is that the latter requires
implementing measures at national level so that the application would be
lodged against these acts (or omissions) of the specific respondent State.40 The
logic of the mechanism seems to be that it can be triggered only in situations
whereby implementation of EU law is strictly required from Member States.
Indeed, in this scenario, the judicial protection of individual rights, under the
36. De Schutter, op. cit. supra note 27, para 2; Gaja, op. cit. supra note 27, p. 194; id., “The
‘co-respondent mechanism’ according to the draft agreement for the accession of the EU to the
ECHR”, 2 Esil Reflections (2013), 4; Lock, op. cit. supra note 27, 185.
37. Potteau, op. cit. supra note 4, 105; Gaja, op. cit. supra note 27, p. 194; id., op. cit.
previous note, 4; Lock, op. cit. supra note 27, 182.
38. De Schutter, op. cit. supra note 27.
39. Fifth Negotiation Meeting between the CDDH ad hoc Negotiation Group and the
European Commission on the Accession of the European Union to the European Convention on
Human Rights, Final report to the CDDH, Strasbourg, 3–5 Apr. 2013, 47+1(2012)008, 7.
40. For it contains a reference to Art. 3(2) of the Draft agreement.
EU legal order, is usually achieved through the national courts. It might be

worth stressing that, coherently with its rationale, the prior involvement
mechanism does not apply in case of EU direct remedies.
In national cases, in accordance with the ECtHR’s subsidiary function, the
individual concerned is expected previously to exhaust the domestic remedies
of the respondent State. It follows, in this context, that the only way to have
access to the Luxembourg judges, in order to challenge the validity of the EU
law provision or the measure which is at the origin of the alleged violation of
the Convention, rests on the decision of the national court to seek a
preliminary ruling from the ECJ pursuant to Article 267 TFEU. As is known,
whenever the question concerning the coherence of an EU legal provision with
a fundamental right arises, the national court can or has to refer a preliminary
ruling to the ECJ on the validity of the EU act or on the interpretation of a
provision of primary law which may require a consistent construction with
fundamental rights (since the ECJ may not rule on the validity of primary law).
That explains why the prior involvement rule provides that if the ECJ had no
such possibility, because the national court did not make a request for a
preliminary ruling – or even because a question of EU law compatibility with
fundamental rights may not have arisen allowing for a preliminary reference –
“sufficient time shall be afforded for the Court of Justice of the European
Union to make such an assessment” (Art. 3(6) first sentence). Arguably, the
Strasbourg Court will have to stay the proceedings, whilst the EU is obliged
“to ensure that such assessment is made quickly so that the proceedings before
the Court are not unduly delayed” (Art. 3(6), third sentence). Presumably, the
ECJ will rule through an accelerated procedure in order to safeguard the
interest of the individual concerned to have swift proceedings. The procedures
by which the ECJ is involved are to be dealt with at EU level, likely through
internal rules to be adopted by the institutions when concluding the accession
agreement.
The external control of the Strasbourg Court and its prerogatives under the
ECHR are preserved, for the prior involvement rule “shall not affect the
powers of the Court” (Art. 3(6), last sentence). Hence, the autonomy of the
Strasbourg Court is not undermined. As the Draft Explanatory report clearly
states, the accession implies that the decisions of the ECtHR “in cases to
which the EU is party will be binding on the EU’s institutions, including the
CJEU”.41 The provision reflects the binding force of the Strasbourg Court’s
41. Fourth Negotiation Meeting Between the CDDH Ad Hoc Negotiations Group and the
Human Rights, Draft explanatory report to the agreement on the accession of the European
Union to the convention for the protection of human rights and fundamental freedoms,
Strasbourg, 8 Jan. 2013, 47+1(2013)002, 21d.
decisions vis-à-vis the Contracting Parties according to Article 46 ECHR.

Even if the ECJ holds that the EU provision is invalid, the applicant will not
lose the status of victim for the purpose of the ECHR, unless the national
court’s decision is quashed and the applicant’s rights are restored in terms of
restitutio in integrum or just compensation.
The second condition needs to be fulfilled by virtue of EU internal rules
and, if necessary, by way of interpretation. The lack of assessment requirement
seems to imply that the ECJ has never dealt with the violation of the
fundamental right raised by the applicant before the Strasbourg Court, so that
in its case law under both direct and indirect remedies, the ECJ has never
rejected a plea of illegality concerning an EU act with regard to the
fundamental right at issue, nor interpreted a provision of primary law in a
coherent way with a specific fundamental right. In other words, there would
have to be a sort of a petitum identity between the ECJ ruling and the right
which is at stake before the Strasbourg Court. Conversely, this condition is not
fulfilled if the ECJ actually stated, even through obiter dicta, that the EU law
provision does not conflict with the same fundamental right issue raised
before the ECtHR. On this and other potential controversial issues it seems
reasonable to expect that the ECtHR will decide upon a request to suspend
proceedings made by the Union.
In addition, one may wonder about the possibility to suspend the Strasbourg
proceedings if the ECJ has ruled on an issue in the specific circumstances of
a given case, and when new elements and/or another context highlight the case
in a different manner. It appears in line with the rationale of the prior
involvement rule, as tentatively demonstrated infra, that the Luxembourg
Court would be given the possibility to address the matter again. After all, an
evolution of the Strasbourg Court’s jurisprudence could bring the ECJ to link
its ruling with the former. For instance, in PVC II the ECJ made such an
alignment as regards the right to protection against self-incrimination,42 as it
did in Roquette Frères SA.43 The recent N.S. ruling44 confirms this attitude of
the ECJ as regards in particular the well-known Strasbourg Court ruling in the
M.S.S. case,45 though the N.S. judgment focuses in particular on the values of
the Charter of fundamental rights.
As to the viability of the prior involvement mechanism, it is however worth
noting that, just before the Council decision on the negotiating directives, it
was advocated by the two courts themselves. The ECJ published a “Discussion
42. Joined Cases C-238/00 P, C-244, 245, 247, 250-252/99 P, Limburgse Vinyl
Maatschappij (LVM) and other v. Commission, [2002], ECR-I 8375, paras. 273–276.
43. Case C-94/00, Roquette Frères SA, [2002] ECR I-9039, para 29.
44. Joined Cases C411 & 493/10, N.S., judgment of 21 Dec. 2011, nyr, paras. 88–108.
45. Cited supra note 18.
document” pleading for a mechanism “capable of ensuring that a question of

validity of a Union act” as to compliance with fundamental rights “can be
brought effectively before the Court of Justice before the ECtHR rules on the
compatibility of that act with the Convention”.46 A joint communication of
the Presidents of the two Courts endorsed this at a later date.47 It has been
argued that the ECJ imposed the prior involvement mechanism in order to
preserve its monopoly on the interpretation of EU law, as well as on the
validity of EU acts.48 Be that as it may, the mechanism remains contentious not
only because it is not clear whether it is consistent with the ECHR system
(infra, section 5), but also because its EU legal basis needs to be grounded in
relation to Protocol No 8 (infra, section 6). These issues will be now
addressed.
5. The prior involvement rule’s coherence with the ECHR
The judicial system of control instituted by the ECHR is based on the principle
of subsidiary function as regards the Contracting Parties. This essential
character has also been stressed by the Interlaken Declaration,49 as well as by
the General Secretary of the Council of Europe,50 having in mind in particular
the relevant and increasing backlog of the Strasbourg Court.
Enshrined in Articles 1, 13 and 35(1) ECHR, the subsidiary nature of the
supervisory mechanism implies that it is primarily up to the authorities of the
Contracting party to apply the Convention rights, guaranteeing and protecting
them at national level. Thus, a concrete case of alleged violation of the ECHR
can be brought before the ECtHR only after all local and effective remedies
46. Discussion document of the Court of Justice of the European Union on certain aspects
of the accession of the European Union to the European convention for the protection of human
rights and fundamental freedoms, <curia.europa.eu/jcms/upload/docs/application/pdf/2010-
05/ convention_en_2010-05-21_12-10-16_272.pdf>, para 12. Basically, the ECJ argued that
the prior involvement was to be justified on two grounds: first, on the principle of subsidiarity
provided for in the control mechanism of the ECHR (para 6); second, because in the judicial
system of the EU, the ECJ alone has the jurisdiction to declare that an act of the Union is invalid
(para 8).
47. Joint communication from the Presidents of the European Court of Human Rights and
the Court of Justice of the European Union, further to the meeting between the two courts in Jan.
2011, <curia.europa.eu/jcms/upload/docs/application/pdf/2011-02/cedh_cjue_english.pdf>.
48. Benoit-Rohmer, cited supra note 1, 290–291.
49. High Level Conference on the Future of the European Court of Human Rights,
Interlaken Declaration, 19 Feb. 2010.
50. Contribution du Secrétaire Général du Conseil de l’Europe à la préparation de la
conférence ministérielle d’Interlaken, 14 Jan. 2010.
have been exhausted in accordance with the relevant domestic law.51 The
ECtHR has consistently reiterated that its supervisory role by virtue of Article
1 ECHR is subject to that principle, since “the primary responsibility for
implementing and enforcing the guaranteed rights and freedoms is laid on the
national authorities”.52 Further, according to a well-established jurisprudence,
Article 35(1) essentially refers back to the procedures prescribed by the
domestic law of the Contracting party concerned.53 Against this background,
it can be argued that the prior involvement mechanism does fit the subsidiary
character of the ECHR’s judicial control.
It seems all the more so if one considers another essential element of that
character – the “margin of appreciation” doctrine as elaborated in the case law
of the Strasbourg Court. Subject to some limits, Contracting Parties enjoy a
measure of discretion in the implementation of the Convention provisions,
allowing due regard to be given to local specificities.54 National judges have a
primary responsibility in this respect.55 The same principle should be applied
to the EU: a ruling of the Luxembourg Court prior to the decision in
Strasbourg would have the advantage that the former’s perspective would be
taken into account, as long as the Strasbourg Court’s powers are respected.
The prior involvement mechanism seems to offer another advantage. In the
EU legal order fundamental rights may be conceived as a complex set of
primary common values of the European society – “the peoples of Europe”,56
or the peoples of the Member States. Those values can be considered the pillar
of the European identity. The upgrading of the Charter of Fundamental Rights
to the rank of primary law is not only relevant in terms of hierarchy within EU
law sources. It may also be viewed as a means to constitute, in a foreseeable
51. E.g. Kemmache v. France, Appl. No. 17621/91, judgment of 24 Nov. 1994, paras.
37–38; Conforti, “Principio di sussidiarietà e Convenzione europea dei diritti umani”, (1994)
Rivista di diritto internazionale, 42.
52. Ex multis Kudla v. Poland, judgment of 26 Oct. 2000, para 153; Z. and others v. the UK,
judgment of 10 May 2001, para 103.
53. Kemmache v. France, cited supra note 51, 37.
54. Cf. Arai-Takahashi, The Margin of Appreciation Doctrine and the Principle of
Proportionality in the ECHR (Intersentia, 2002), passim; Lugato, “Sulla sussidiarietà in diritto
internazionale”, (2011) Archivio Giuridico, 3 et seq.; id., “The margin of appreciation and
freedom of religion: Between treaty interpretation and subsidiarity”, electronic copy available
at: <ssrn.com/abstract=2182377>.
55. As mentioned above, the High level conference on the future of the European Court of
Human Rights, held at Interlaken on 19 Feb. 2010, stressed the “subsidiary nature of the
supervisory mechanism established by the Convention and notably the fundamental role which
national authorities, that is, governments, courts and parliament must play in guaranteeing and
protecting human rights at the national level”. Moreover, it reiterated the call “for a
strengthening of the principle of subsidiarity”.
56. Art. 1(2) TEU.
perspective, a social compact among European citizens.57 The EU legal order

may be viewed as a unique experience in the landscape of international
cooperation, namely if and when it will integrate the peoples of Europe in a
supranational framework. So far, focus is put on roots common to the Member
States, and on shared values underlying them. It is an emphasis which
confirms the tendency towards an integration process which is not only
mercantilist but also is permeated with social, cultural and humanistic values
and with the rule of law. The system refers to a social group composed in
primis by the citizens of the Union, holding a set of rights stemming directly
from the citizenship of the EU which creates an opportunity for a “European
civic identity, and there-with an European civic demos”.58 In this logic, such a
status civitatis points not only to the link with the Nationszugehörigkeit, but
also to a new concept of membership, gradually shaping itself in supranational
terms,59 with a view to social cohesion,60 capable of assimilating a composed
and complex social body – the “peoples of Europe”.
57. In that regard, it seems relevant that the Charter’s scope is wider than that of the ECHR,
even considering its additional Protocols. For instance, the Charter contains some innovative
provisions, such as a prohibition on reproductive human cloning and a protection of labour
rights.
58. MacCormick, Questioning Sovereignty. Law, State, and Nation in the European
Commonwealth (OUP, 2008), p. 145.
59. It might be worth recalling that even the ECtHR did recognize the specific character of
EU citizenship in Piermont v. France, Appl. No. 15773/89, judgment of 27 Apr. 1995, para 64.
See generally Schönberger, “European citizenship as federal citizenship. Some citizenship
lessons of comparative federalism”, 19 Revue Européenne de Droit Public (2007), 61. In that
regard it seems worth recalling the Opinion of A.G. Poiares Maduro in the Rottmann case
(C-135/08, Rottmann v. Freistaat Bayern, [2010] ECR I-1449): EU citizenship “presupposes
the existence of a political relationship between European citizens, although it is not a
relationship of belonging to a people. On the contrary, that political relationship unites the
peoples of Europe. It is based on their mutual commitment to open their respective bodies
politic to other European citizens and to construct a new form of civic and political allegiance
on a European scale. It does not require the existence of a people, but is founded on the existence
of a European political area from which rights and duties emerge. In so far as it does not imply
the existence of a European people, citizenship is conceptually the product of a decoupling from
nationality”. Again, EU citizenship “strengthens the ties between us and our States (in so far as
we are European citizens precisely because we are nationals of our States) and, at the same time,
it emancipates us from them (in so far as we are now citizens beyond our States). Access to
European citizenship is gained through nationality of a Member State, which is regulated by
national law, but, like any form of citizenship, it forms the basis of a new political area from
which rights and duties emerge, which are laid down by Community law and do not depend on
the State. This, in turn, legitimizes the autonomy and authority of the Community legal order”
(para 23).
60. Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004
on the right of citizens of the Union and their family members to move and reside freely within
the territory of the Member States (O.J. 2004, 229/35) states that the enjoyment of the EU
citizen’s rights (in particular, the right to settle long term in the host Member State) “would
Arguably, the Charter of Fundamental Rights is one of the most unifying

factors of this European identity in the making. It would not only exercise a
protective function of individual rights, but it would also express the set of
common values around which to build this social identity. It is true, however,
that an essential legacy of the original EU integration process, and which is
still one of its pillars, is the establishment of the internal market, including its
economic freedoms.61 Conflicts with this original set of EU original values
may arise, as the controversial cases of Laval and Viking show,62 despite the
impressive changes introduced by ECJ jurisprudence and by the Lisbon
Treaty.63 Thus, there is good reason to seek their reconciliation by the ECJ
first, giving the ECtHR the possibility to take into account the specific nature
and traits of the EU integration process.64
In that respect, it seems reasonable to argue that the ECJ is best positioned
to assess, against the background of the complexities and uniqueness of the
EU legal order, the compliance of EU acts with the catalogue of fundamental
rights as enshrined both in the Convention and in the broader framework of the
Charter. If the ECJ states that a EU secondary law provision cannot be
regarded per se as running counter to fundamental values because it leaves a
strengthen the feeling of Union citizenship and is a key element in promoting social cohesion,
which is one of the fundamental objectives of the Union”.
61. In some instances, the ECJ compares the restriction imposed on the economic freedom
provided for in the Treaties by the measures taken in order to protect a given human right and
ultimately uphold the restriction if it is limited, necessary and proportionate (Case C-112/00,
Schmidberger v. Austria, [2003] ECR I-5659, concerning the clash between the free movement
of goods and the freedom of expression and assembly; Case C-36/02, Omega Spielhallen,
[2004] ECR I-9609, as to the restriction of marketing in Germany of laser games which
simulated killings of human beings; Case C-244/06, Dynamic Medien, [2008] ECR I-505,
regarding the circulation of goods and the protection of children). Moreover, in Vlassopoulou
the ECJ made it clear that economic freedoms amount to fundamental rights conferred by the
Treaty to the citizens (Case C-340/89, Vlassopoulou, [1991] ECR-I 2357, para 22).
62. Case C-341/05, Laval un Partneri Svenska Byggnadsarbetareförbundet, (2007) ECR
I-11767, paras. 101–111; Case C-438/05, International Transport Workers’ Federation v.
Viking, [2007] ECR I-10779, paras. 74–90. In these cases the ECJ ruled in the end that the
constraints imposed on the free movement of services or freedom of establishment in order to
safeguard the right to strike as a fundamental right, were unjustified and disproportionate. The
ECJ approach was contrasted with two judgments of the ECtHR which in Demir & Baykara v.
Turkey, judgment of 12 Nov. 2008, Appl. No. 34503/97, and EnerjiYapi-Yol v. Turkey, judgment
of 24 Apr. 2009, Appl. No. 68959/01, interpreted Art. 11 ECHR widely with the aim to protect
the fundamental rights to collective bargaining and to collective action.
63. It is noticeable that the ECJ, inspired by the constitutional values common to the
Member States, has been building the EU legal order all the more on the protection of
fundamental rights. Amongst others rulings, Kadi (cited supra note 13) shows the importance of
fundamental rights as structural principles of the EU. It is not by chance that, building upon the
ECJ case law, the Union is now explicitly founded on the inviolable and inalienable rights of the
human persons, freedom, democracy, equality and the rule of law (Art. 2 TEU).
64. For a different conclusion see Scheeck, op. cit. supra note 24, 853.
margin of manoeuvre to the Member States when they implement that

provision, under the EU legal order the latter are obliged to use this
discretionary power in a manner in compliance with fundamental rights. One
could reasonably expect that the ECtHR will accept this ECJ assessment, so
that in a specific case of violation of the ECHR responsibility would be in
principle allocated to the Member State directly concerned. Clearly, this is not
to say that the ECJ priority ruling could or should affect the ultimate powers
and jurisdiction of the Strasbourg Court. It is a matter of course that its
decision in cases to which the EU is party will be binding on the EU
institutions, along with the ECJ, whose previous assessment of the case will
naturally not bind the ECtHR.65
In a broader perspective, one may still query whether the prior involvement
rule is per se a watertight solution to the issue concerning the adjustment of
the EU judicial system to the Convention’s principle of subsidiarity. In that
respect, it is worth focusing on the evolution of the ECtHR case law as regards
the subsidiarity element enshrined in Article 13 ECHR. The Court held that
this provision binds the Parties to ensure a judicial relief at the national level
that must be effective. In Lukenda the Strasbourg Court carefully defined the
obligation stemming from Article 13 – the Parties not only have the general
obligation to solve the problem that led the Court to find a violation of a
fundamental right, but also, in procedural terms, they “must provide
mechanisms within their respective legal systems for the effective redress of
violations of the Convention rights”.66 In the Strasbourg Court’s logic, the
internal procedure should provide for an adequate redress at domestic level –
the remedy must not be unjustifiably hindered by acts or omissions of the
authorities of the Party concerned.67
65. Fourth Negotiation Meeting Between the CDDH Ad Hoc Negotiations Group and the
Human Rights, Draft explanatory report, cited supra note 41, 60.
66. Lukenda v. Slovenia, Appl. No. 23032/02, judgment of 6 Oct. 2005, paras. 94 and 95.
67. That seems quite a natural consequence once the accession is finalized: in Altun v.
Turkey, Appl. No. 24561/94, judgment of 1 June 2004, the Strasbourg Court held that “Article
13 of the Convention guarantees the availability at national level of a remedy to enforce the
substance of the Convention rights and freedoms in whatever form they might happen to be
secured in the domestic legal order. The effect of Article 13 is thus to require the provision of a
domestic remedy to deal with the substance of an ‘arguable complaint’ under the Convention
and to grant appropriate relief, although Contracting States are afforded some discretion as to
the manner in which they conform to their Convention obligations under this provision. The
scope of the obligation under Article 13 varies depending on the nature of the applicant’s
complaint under the Convention. Nevertheless, the remedy required by Article 13 must be
‘effective’ in practice as well as in law, in particular in the sense that its exercise must not be
unjustifiably hindered by the acts or omissions of the authorities of the respondent State”,
para 70.
In that regard, the prior involvement rule rectifies ex post an inaccurate

decision taken by a national judge, who failed to give the parties due access to
the ECJ. As further explained below, preliminary rulings proceedings
complete and integrate the judicial protection provided for by the EU legal
order. Yet the EU judicial system shows some unsatisfactory elements
whenever individuals have access to a direct remedy before the Luxembourg
judges68 – a situation to which, as noted above, the prior involvement
mechanism is not applicable.
Undoubtedly, the ECJ has on several occasions held that the treaties provide
for a complete system of remedies. Nevertheless, this assumption needs to be
balanced with the stringent evolution of the ECtHR case law on Article 13
ECHR. Given the ECJ’s well-known restrictive interpretation of the
“individual concern” requirement with regard to Article 263 TFEU, in the
perspective of the accession of the EU to the ECHR a gap in the judicial
protection might follow, subject to the interpretation of the new provision
enshrined in Article 263(4) TFEU. If a strict interpretation of that provisions
prevails, then it would be desirable to revisit the Plaumann jurisprudence to
better accommodate the EU judicial system to the obligation stemming from
Lukenda and related case law.69 The problem is that the step forward ensured
by the new Article 263(4), last sentence TFEU, still excludes some acts from
being subject to judicial control, namely the legislative provisions that do not
entail implementing measures.70 In Inuit and Microban the General Court
denied that the notion of “regulatory act” includes legislative acts.71 To the
extent that, even after the Treaty of Lisbon, there are still acts capable of
affecting individual fundamental rights over which jurisdictional control is not
ensured, it is arguable that the interpretation of the “individual concern”
requirement pursuant to Article 263 could be extensively reshaped. However,
if it is possible to challenge the lawfulness of a legislative act (not requiring
implementing measures) because of its alleged incompatibility with
fundamental rights, through the means of a preliminary reference to the ECJ,
68. As is known, an EU act may be challenged in several ways – either through a direct
action under Art. 263 TFEU, or under Art. 277 TFEU, or through the preliminary ruling
procedure under Art. 267 TFEU.
69. Case 25/62, Plaumann, [1963] ECR 195; Joined Cases 106 & 107/63, Toepfer, [1965]
ECR 497; Case 62/70, Bock, [1971] ECR 897; Case C-50/00 P, Unión de Pequeños Agricultores
v. Council, [2002] ECR I-6677.
70. Amplius Balthasar, “Locus standi rules for challenges to regulatory acts by private
applicants: The new Article 263(4) TFEU”, 35 EL Rev. (2010), 342.
71. Case T-186/10, Inuit, Order of 6 Sept. 2011. In Case T-262/10, Microban, 25 Oct. 2011,
the General Court held that “the meaning of ‘regulatory act’ for the purposes of the fourth
paragraph of Article 263 TFEU must be understood as covering all acts of general application
apart from legislative acts” (para 21).
then the EU system of judicial review could amount in principle to being safe,
having in mind its specificity.72
6. The prior involvement rule and the EU legal system
In the EU legal order, the accession agreement is a mere international treaty

that will be concluded by the EU only,73 irrespective of the additional
intervention of national consent – which is, rather oddly, required (not to
mention the ratification of all non EU States that are members of the Council
of Europe).74 Besides, Member States, pursuant to the principle of sincere
cooperation, should facilitate the achievement of the Union’s objective to
achieve the accession to the ECHR.
In the EU hierarchy of norms, international agreements are binding upon
the institutions and Member States.75 Primacy over secondary and third level
law acts does not, however, extend to primary law.76 As a result, the accession
agreement must comply with the conditions provided for in Protocol No 8, as
well as with the constraint which prevents accession from affecting the
72. It is worth recalling that the ECJ held that “the opportunity open to individuals to plead
the invalidity of a Community act of general application before national courts is not
conditional upon acts actually having been the subject of implementing measures adopted
pursuant to national law. In that respect, it is sufficient if the national court is called upon to hear
a genuine dispute in which the question of the validity of such an act is raised indirectly” (Case
C-491/01, British American Tobacco, [2002] ECR-11453, para 40).
73. Pursuant to Art. 218(6)(a)(ii), the Council adopts the decision concluding the agreement
after obtaining the consent of the European Parliament.
74. Art. 218(8) TFEU makes it clear that the Council decision cannot enter into force unless
“it has been approved by the Member States in accordance with their respective constitutional
requirements”. This requirement, added pending the negotiation of the Lisbon Treaty, implies in
essence a double approval by the national parliaments. The Member States are already parties
of the ECHR and in order to allow the EU accession they are expected to ratify the agreement
since it entails modifications of the ECHR. It is not easy to understand its rationale: the
accession agreement can hardly be conceived as a mixed treaty from the EU standpoint. The
approval of the Council decision according to their respective constitutional requirements,
though formally related to the Council decision, overburdens the EU internal procedure.
Certainly, the Council decision may cover some new internal provisions aimed at
complementing the legal framework of the accession. Nonetheless, the recourse to the
“constitutional requirements” seems somehow excessive, given that the Council decision needs
unanimity and that the perspective of EU accession has been already approved by national
parliaments when they ratified the Treaty of Lisbon: Baratta, “Le principali novità del Trattato
di Lisbona”, (2008) Il Diritto dell’Unione europea, 42; Gaja, op. cit. supra note 27, 183.
75. Art. 216(2) TFEU. Specialists often remark that primary law is a superior source of law
with respect to the international agreements concluded by the institutions: inter alia Isaac and
Blanquet, Droit général de l’Union européenne, 9th ed. (Dalloz, 2006), p. 197.
76. Case C-308/06, Intertanko and Others, [2008] ECR I-4057, para 42 and case law cited.
Union’s competences as defined in the Treaties.77 A Draft agreement

inconsistent with these conditions would surely be rejected by the ECJ in its
opinion pursuant to Article 218(11)TFEU.78 Therefore, from the EU
perspective the matter is not if the EU accedes to the ECHR – since the Union
“shall accede” – but how (the quomodo), when acceding, to preserve all the
conditions laid down by the treaties and notably in Protocol No. 8.79 Having
that in mind, the problem lies in whether EU primary law requires the prior
involvement mechanism or not. This article argues that a positive response is
necessary, whilst the diametrically opposite view is not only at odds with EU
primary law requirements, but it could also result in affecting the applicants’
individual rights.
6.1. The fundamental role of the ECJ in protecting individual rights

through the preliminary ruling: the “ex-ante supervisory judicial
model”
In the EU, the judicial protection of individuals is and remains anchored to

mainly national judicatures. It is a model in which EU rights conferred on
natural and legal persons, including human rights, are enforced by domestic
courts routinely acting as first instance judges, generally with quite a limited
discretion to refer questions to the ECJ.80 The essential role of domestic courts
is focused in Article 19(1) TEU. They are the ordinary guardians of the EU
legal system, along with the ECJ81 which ensures an ex ante influence on and
supervision of the national judge ruling. No doubt the so-called direct
remedies – i.e. direct access to Luxembourg courts to challenge the validity of
EU law provisions – are quite limited, given the origin, the nature and the
functions of the ECJ. Overall, this system can be described as an ex ante
supervisory judicial model in which the primacy of ECJ ruling is essential. In
this model, the preliminary ruling procedure amounts to being not only a
founding principle of the EU legal order, but also a cooperative instrument for
protecting individual rights. National courts, pursuant to the principle of
77. Art. 6(2) TFEU (last sentence).

78. Requested in July 2013, see supra note 1. The text of the request is not available at the
time of writing.
79. This passage does not contradict the statement in the introduction to the effect that Art.
6(2) TEU is a qualified commitment of means. It just highlights the challenge of the EU
negotiation with the Council of Europe in order to meet the several conditions posed by primary
law (the quomodo) for accession to occur.
80. Although the treaties provide for the option of extending the power to adjudicate of the
EU courts to disputes relating to EU acts – such as Art. 262 TFEU as regards intellectual
property rights – that is a mere option which does not establish a monopoly for the Luxembourg
judges: Opinion 1/09, paras. 62 and 80, nyr.
81. Opinion 1/09, para 66.
sincere cooperation, are obliged to ensure, in their territories, the application

and respect for EU law.82 As a consequence, the prior involvement mechanism
seems to mirror at best “the specific characteristics of the Union and Union
law” which have to be preserved by the accession agreement pursuant to
Article 1(a) Protocol No. 8. Under Article 19 TEU and the related
constitutional jurisprudence, the constructive dialogue of the national judges
with the ECJ is an essential and unique feature of the EU legal order which
cannot be compared to a State model of justice. In line with the principle of
subsidiarity on which the EU judicial system is founded, both the ECJ and the
national judge – le juge communautaire de droit commun83 – ensure la
justiciabilité of individual rights, including above all those having
fundamental nature.84
This characteristic of the EU legal order has featured particularly in a
constitutional ECJ jurisprudence. Opinion 1/09 – a case concerning the
conferral of the power to adjudicate on individual disputes to an international
court – is quite revealing.85 National judges are considered as being
instrumental in achieving the integration objective through normative means.
They also seem to have received a necessary delegation of power for
protecting individual rights, becoming irreplaceable enforcers of EU law
under the ex ante supervision role of the ECJ through the preliminary ruling
procedure. Hence, Article 267 TFEU amounts to being a tool to ensure the
protection of individual rights as guaranteed by EU law (including the Charter
of Fundamental Rights) which the ECJ, indirectly but primarily, and national
82. Ibid., paras. 68–69.

83. This is the wording used by the French Conseil d’Etat (Dubout, “Du fond à la forme de
l’arrêt Perreux: Retour sur l’affirmation de sa fonction communautaire par le Conseil d’Etat
français”, 110 Les Petites Affiches (2010), 7). See also Case T-51/89, Tetra pak v. Commission,
[1990] ECR II-347, para 42: the General Court stated that when applying EU antitrust law “the
national courts are acting as Community courts of general jurisdiction”.
84. Indeed, the national judge is the ordinary judicature: Timmermans, “L’adhésion de
l’Union européenne à la Convention européenne des Droits de l’homme”, <www.europarl.
europa.eu/document/activities/cont/201003/http://20100324ATT71235/20100324ATT71235
EN.pdf>.
85. Yet, the ECJ long-standing case law already enhanced the preliminary reference
procedure when it stressed its function of pursuing the full and uniform application of EU law
through national courts (see e.g. Case C-355/04 P, Segi, [2007] ECR I-1662, paras. 53–54. The
preliminary ruling procedure has been an exceptional means for ensuring effectiveness and
supremacy of EU law, as well as an instrument for integrating very different legal traditions: ex
multis Barav, “Transmutations préjudicielles” in Colneric et al. (Eds.), Une Communauté de
droit. Festschrift für G.C. Rodriguez Iglesias (2003), p. 621; Tridimas, “Knocking on heaven’s
door: Fragmentation, efficiency and defiance in the preliminary reference procedure”, 40 CML
Rev. (2003), 9; Jacobs, “Effective judicial protection of individuals in the European Union:
Now and in the future”, (2002) Dir. Un. Eur., 203. As regards the reasons behind the success of
preliminary ruling procedure, see Carrubba and Murrah, “Legal integration and use of the
preliminary ruling process in the European Union”, 59 IO (2005), 399–418.
judges, directly, have to secure within domestic legal orders.86 It is a matter of

course that this is not a relation among equals, arguing from Article 19 TEU
and the long-standing jurisprudence on the effect of Article 267 rulings on the
national courts. Precisely because of the primary role attributed to the ECJ,
one may assume that the preliminary ruling judgments and the related
domestic court decisions are a unitary and constituent part of the legal system
protecting individual rights, amounting to an essential part of the basic
features of the EU legal order as a whole. To deny access to the ECJ through
the preliminary rulings procedure is a failure of the EU judicial system.
It is exactly against this background that Article 2 of Protocol No. 8 (the
accession agreement “shall not affect” the powers of its institutions) deserves
to be considered. Even though the term “affect” is neutral, it implies the
obligation not to harm the powers attributed to the judicial institutions and,
particularly, those pertaining to the ECJ under the preliminary ruling
procedure. International agreements concluded by the Union cannot alter the
allocation of responsibility conferred on the ECJ by the Treaties, since its
judicial power, as intertwined with those of national judges, is a founding
principle of the EU legal order which requires respect inter alia when the EU
seeks accession to the ECHR.87
The prior involvement rule does not aim at safeguarding the ECJ’s
monopoly to rule on the invalidity of the EU acts. This perspective would
hardly be conclusive. For it is clearly not in the remit of the ECtHR to declare
an act of the Contracting Parties void. On the contrary, the Strasbourg Court
decides only on the compatibility of a given Party’s conduct with the
obligations stemming from the ECHR. The monopoly argument is perhaps
relevant as to the interpretation of EU law. Certainly, as an international
jurisdiction, the Strasbourg Court usually considers the domestic law of the
Contracting parties as a matter of fact, without dwelling in depth on its
interpretation. According to settled case law it is primarily for national
authorities, notably the courts, to interpret and apply domestic law, the
Strasbourg Court’s role being confined to ascertaining that the effects of such
an interpretation are compatible with the Convention.88 But even though the
ECtHR might embark on a minimal interpretation of EU law, that result would
not be susceptible of imposing any constraint on the ECJ’s ultimate role to
86. Opinion 1/09, paras. 83–85.

87. Opinion 1/91, [1991] ECR-I 6079, paras. 35, 71; C-459/03, Commission v. Ireland,
[2006] ECR-I 4635, para 123.
88. Kruslin v. France, Appl. No. 11801/85, judgment of 24 Apr. 1990, para 29 ; Slivenko v.
Latvia, Appl. No. 48321/99, judgment of 9 Oct. 2003, para 105; W. v. Netherlands, Appl. No.
20689/08, judgment of 20 Jan. 2009 (admissibility); Guérin Automobiles v. 15 Etats de l’Union
européenne, cited supra note 17: “La Cour rappelle d’emblée qu’elle n’a pas pour tâche de se
substituer aux juridictions internes des Etats parties à la Convention. C’est au premier chef aux
ensure uniformity in the interpretation and application of the common law

throughout the territories of the Member States.89 After all, one can safely say
that it is not in the Strasbourg Court’s remit to tell the ECJ what the content of
the EU substantive law would generally be.90 In this respect, the prior
involvement mechanism allows the Strasbourg Court to apply the EU law
provision on the basis of the previous interpretation of the ECJ, whose power
as the ultimate interpreter of EU law would hence be respected.
In the EU related cases the exhaustion of local remedies principle does not
entail that the individual application should be dismissed by the ECtHR if the
national judge fails to make a request for a preliminary ruling. Such an
outcome would be hardly acceptable, since this procedure is not at the disposal
of individuals. It is here suggested that this failure creates a gap which should
be filled precisely through a means which recovers the judicial role of the ECJ.
It does not seem to be a privilege accorded to the EU with respect to other
Contracting Parties. Their respective situations are not comparable. On the
contrary, rejecting the prior involvement mechanism would imply that the
ECtHR would be called to rule in an EU related case without the EU judge
being able to assess the relevant issue. The specificity of the EU judicial
system, and in particular the hierarchical relationship between the national
judges and the ECJ,91 would be undermined.
6.2. The unsatisfactory results of denying the prior involvement of the ECJ
A diametrically opposite view holds that the preliminary involvement

mechanism is unfounded.92 As a result, the application against a (respondent)
Member State brought before the Strasbourg Court for an implementing
measure concerning an EU law provision or act, would be admissible as soon
as the applicant exhausted the domestic remedies. It would be so regardless of
whether the plaintiff requested the national judges to refer for a preliminary
question to the ECJ or not.
autorités nationales, et notamment aux cours et tribunaux, qu’il incombe d’interpréter la

législation interne”; Markovich and others v. Italy, Appl. No. 1398/03, judgment of 14 Dec.
2006, para 108.
89. De Schutter, op. cit. supra note 27, section 1.2.
90. That is so regardless of the fact that a ruling may imply reforms of domestic legislation
which can sometimes be an implied consequence: e.g. Marckx v. Belgium, Appl. No. 6833/74,
judgment of 13 June 1979, paras. 36, 37, ; Dudgeon v. United Kingdom, Appl. No. 7525/76,
judgment of 24 Feb. 1983, para 14; Norris v. Ireland, Appl. No. 10581/83, judgment of 26 Oct.
1988, para 33.
91. Baratta, “National courts as ‘guardians’ and ‘ordinary courts’ of EU law: Opinion 1/09
of the ECJ”, 38 LIEI (2011), 319–320.
92. De Schutter, op. cit. supra note 27, para 2.
The first argument against this scenario is that the preliminary ruling
procedure is claimed to be tamquam non esset, i.e. irrelevant, as it is ancillary
in the EU judicial system. As tentatively shown above, such an outcome is
hardly consistent with the nature of the preliminary ruling procedure which is
at the centre of the judicial architecture of the EU legal order, allowing the
national judge to apply EU law provisions under the direct collaboration, or
more correctly control, of the ECJ. Tellingly, a form of responsibility has also
been shaped whenever the national judge fails to refer a case to the ECJ,
pursuant to the Köbler ruling.93 It means that the right to access the ECJ may
be pleaded by the individuals directly concerned against the Member State
whose court failed to raise a preliminary request. Even from this standpoint,
the ECJ performs an essential element of control with regard to the domestic
judicial functions.94
Secondly, to deny the prior involvement of the ECJ could also imply that the
exhaustion of remedies condition enshrined in Article 35 ECHR is considered
to be met provided that the applicant had a proactive role in raising the
question regarding the compatibility of a given EU act with fundamental
rights and requested the national court to refer a preliminary question to the
ECJ on the matter forthwith.95 In this perspective, although the EU treaties do
not envisage this procedure as providing an individual remedy, the party’s
initiative to refer the case to the ECJ regarding the alleged human rights
violation would suffice per se. A failure of the national court to ask for a
preliminary ruling would be capricious and amount to a violation of the right
of access to court under Article 6 ECHR.96 Further, that failure could
also imply an infringement of the EU legal order, given the obligation to refer
to the ECJ validity issues concerning secondary law, as held in Firma
Foto-Frost.97
93. Case C-224/01, Köbler, [2003] ECR I-10290, paras. 35–36.

94. Morelli, “La Corte di giustizia delle Comunità europee come giudice interno”, (1958)
Riv. dir. int., 3.
95. De Schutter, op. cit. supra note 27, para 2; Jacqué, op. cit. supra note 1, para 4.
96. De Schutter, ibid.; Potteau, op. cit. supra note 4, 103. Cf. by analogy the Strasbourg
Court case law examined in Van Dijk et al., Theory and Practice of the European Conventionon
Human Rights, 4th ed. (Intersentia, 2006), p. 563. See also the Commission of Human Rights
decisions according to which a refusal by a national court to seek advice from the ECJ could
lead to a violation of the ECHR and could be contrary to the right to access a court in each stage
of the procedure, especially when the national court’s refusal is arbitrary (Scheeck, op. cit.
supra note 24, 868).
97. Case 314/85, Firma Foto-Frost, [1987] ECR 4199, where the ECJ held that the national
courts have no power to declare a Union act invalid, on the basis of policy considerations, that
is to say by stating the necessity of safeguarding the uniform application of Union law. For an
implicit case of a failure to refer see C-154/08, Commission v. Spain, [2009] ECR I-187.
Even this approach is not convincing for it fails to achieve an effective

protection of individuals’ rights. On the one hand, although the individual may
ask the national court to initiate a preliminary ruling procedure before the
ECJ, in order to demonstrate that he had exhausted domestic remedies in
accordance with Article 35(1)ECHR, in legal terms that procedure is not at his
disposal. Not only can the national court reject that request, but also the
preliminary ruling procedure is by its very nature not a remedy, but rather an
instrument of ex ante dialogue/control between national and Luxembourg
judges.
On the other hand, in terms of judicial protection of the individual, the
intervention of the Strasbourg Court risks being quite limited, should it cover,
as has been suggested, only the denied access to the ECJ for a preliminary
ruling. The external control would not be able to assess any violation of a
fundamental right whose breach has been alleged. The role of the ECtHR
would be just to evaluate whether the denial of the right of access to a court is
contrary to Article 6 ECHR (due process right). This is the only possible
solution if one considers that the exhaustion of the local remedies condition,
pursuant to Article 35(1)ECHR, would not have been met since the ECJ was
not given the opportunity to rule. In other words, there would be no judicial
remedy in order to evaluate the alleged violation of the fundamental
substantive right at stake and no form of reparation whatsoever in that regard.
One could also argue that the respondent State before the ECtHR could also
face an infringement procedure lodged by the Commission with the ECJ for
the very same facts. In this case, the ECJ ruling would merely prevent the
violation of the obligation to seek a preliminary ruling from the ECJ stemming
from Article 267 TFEU. Ultimately, the complainant’s judicial protection
would be undermined. Furthermore, a punitive attitude towards governments
would prevail, since the State whose judges refused to make a preliminary
ruling would be condemned for violation of Article 6 ECHR. Ironically, due to
domestic constitutional constraints on the separation of powers, governments
would hardly be in a position to enforce any obligation to make a preliminary
ruling request to the ECJ against a national judge. This negative result, as to
the judicial protection of the person concerned, would be circumvented only if
the Strasbourg Court could assess the compatibility of the EU act with the
ECHR any time the applicant raised the preliminary ruling request before the
national court. In other words, the condition of the exhaustion of internal
remedies would be fictitiously considered as being fulfilled, once the
individual made a plea to the national court to refer the issue to the ECJ.98 In
98. De Schutter, op. cit. supra note 27, section 2.

any case, this seems quite a hypothetical argument, because the ECtHR has
consistently decided with regard to the specificity of the Italian constitutional
system that a preliminary reference to the supreme national court is not a
remedy that needs to be exhausted.99 Moreover, the admissibility of the
application would depend on the applicant’s request for a preliminary
reference and would imply a burden upon the applicant. This is not the case in
the solution suggested above.
7. Does the introduction of the mechanism require a revision of the

EU Treaties?
It has often been argued that the prior involvement mechanism would require
a prior revision of primary law. As a demonstration of this assumption, it is
remarked that the ECJ would be seized not by a national court, as stipulated by
Article 267 TFEU, but rather by the Commission or by one or more Member
States, regardless of the fact that they are sued as defendants or co-defendants
before the Strasbourg Court. This criticism is quite sharp, since it envisages a
consequence that would clearly be at odds with the implications stemming
from Article 6(2)TEU:100 either a revision of primary law is implemented
before accession or the mechanism is deleted. Tertium non datur.
However, this alleged incoherence of the prior involvement mechanism as
currently envisaged seems too formalistic. Indeed, the consequences of
seizing the ECJ implied by the mechanism should be considered against the
broader picture of the ECJ case law. As is known, the Luxembourg Court
upheld that an international agreement, concluded by the EU, may confer new
competences on the institutions (including the ECJ), provided that
international instrument does not alter the essential character of the powers
attributed to the institutions by primary law.101 Arguably, the prior
involvement mechanism is a simple means of resuming a power originally
99. In the case Immobiliare Saffi v. Italy (Appl. No. 22774/93, judgment of 28 July 1999) the
ECtHR observed that “in the Italian legal system an individual is not entitled to apply directly to
the Constitutional Court for review of a law’s constitutionality. Only a court trying the merits of a
case has the right to make a reference to the Constitutional Court, either of its own motion or at the
request of a party. Accordingly, such an application cannot be a remedy whose exhaustion is
required under Article 35 of the Convention”, para 42 ; Lock, op. cit. supra note 7, 792.
100. See supra, Introduction.
101. The ECJ endorsed that solution at least on two occasions: see in particular, Opinion
1/92, [1992] ECR I-2821, paras. 32 and 41; Opinion 1/00, [2002] ECR I-3493, paras. 20 and 21;
Opinion 1/09, nyr, paras. 74–76. Cf. in the same sense Timmermans, op. cit. supra note 84, 8,
while Tizzano, op. cit. supra note 32 seems quite cautious on this issue.
attributed to the ECJ – a power that it should have exercised in due course had
the national court dealt with the case properly, or a question of validity had
simply arisen before, allowing for a preliminary reference to the ECJ.
Assuming that the Luxembourg Court resumes a power already granted to it
by the current primary law, the different manner of seizing it does not entail the
prior involvement mechanism altering the essential character of the powers
attributed to the ECJ by the Treaties. In other words, it is here suggested that
the prior involvement mechanism does not involve powers the ECJ does not
have so far, given that Article 267 TFEU does cover the task provided for in
that mechanism. In this perspective, by definition it cannot alter the power
already conferred on the ECJ by the EU and FEU Treaties. It is stated in Article
19(1) TEU that the ECJ “shall ensure in the interpretation and application of
the Treaties the law is observed”. The prior involvement mechanism aims at
ensuring that the accession agreement is consistent with the fundamental role
the ECJ enjoys in the EU legal order. In that regard, the argument according to
which the ECJ is seized in a different manner with respect to that laid down in
Article 267 TFEU seems to take on merely ancillary importance. Moreover, if
the Treaties allocate a primary judicial competence to the ECJ in the
framework of a system of judicial remedies which has – as it is known – its
own specificities, it does not seem necessary to amend the Treaties in order to
ensure that that vital competence is effectively respected. After all, if
the finalization of the EU accession requires several conditions to be met
as laid down in Protocol No 8, on the contrary no primary law rule implies
that accession requires a previous primary law revision in order to
fulfil those conditions. The Draft, as it stands, seems to strike the right
balance.
8. Conclusion
In conclusion, the prior involvement mechanism is consistent with the ECHR

system and meets the conditions imposed by EU primary law for the accession
process, while protecting individual rights at best. The prior involvement rule,
as currently envisaged, does not require a revision of the EU Treaties. The
mechanism is aimed at shaping a new relationship between the two Courts as
the EU’s accession to the ECHR – which appears as an obligation of means
and not one of result – requires a new model for the relation between them.
Indeed, it is likely that the rebuttable presumption doctrine, the so-called
equivalent protection principle once conceded by the ECtHR to the EU legal

system,102 will be dismissed once accession is finalized.103
Interestingly, the accession is deemed to have multifaceted implications for
the EU legal order and for the Member States too. The full impact of the
accession is however impossible to predict. Given the current EU role in a
wide range of areas, it is possible to estimate that a workload for both the ECJ
and the ECtHR would ensue. It could even turn out to be a matter of concern,
since the issue of the respect of fundamental rights is not difficult to raise.
Nevertheless the Institutions are committed to negotiate with the Council of
Europe in order to meet several conditions so that accession may occur. It is
against this background that it has been suggested above that the formula
“shall accede” is not to be interpreted as a pure obligation to join.
The accession is expected to build another layer in the multi-level system of
human rights protection currently ensured by the ECJ, the courts of the EU
Member States (ordinary, supreme or constitutional), and the ECtHR. The
relationship between the ECtHR and ECJ would not be shaped in hierarchical
terms, as to which court is the supreme judicature for the protection of human
rights,104 along the lines of that currently existing between the national
102. In M. & Co v. Germany, the former Commission of Human Rights denied exercising
judicial review over a purely national implementing measure of an EU act where the Member
State had no discretionary power, as long as the EU provides for equivalent protection of
fundamental rights (Appl. No. 13258, decision of 9 Feb. 1990, Decisions and Reports, 138). The
outstanding precedent is the Bosphorus case in which the Strasbourg Court examined an alleged
violation of the right to property since by the means of a national measure Irish authorities
impounded, without compensation, an aircraft on the basis of a mandatory EU regulation which
left no discretion to them. In practice, Ireland just fulfilled EU obligations. The Court construed
the notion of rebuttable presumption: while reviewing the EU guarantees and procedural
mechanisms, it accepted that the EU operates an equivalent standard of human rights protection
and, as a result, there was no manifest deficiency in the instant case (Bosphorus v. Ireland,
Grand Chamber, Appl. No. 450368/98, Judgment of 30 June 2005, 153). Gasparini v. Italy and
Belgium, Appl. No. 10750/03, decision of 12 May 2009.
103. For it amounts to denying jurisdiction over EU law provisions as long as (Solange) an
equivalent protection of human rights is ensured by the supranational system; arguably the
Strasbourg Court would have no reasonable ground to reiterate it after accession. Accordingly,
the Solange-Method (Lavranos, “Towards a Solange-method between international courts and
tribunals?”, in Brode and Shany (Eds.), The Shifting of Authority in International Law,
considering Sovereignty, Supremacy and Subsidiarity (Hart Publishing, 2008), p. 217) has been
overcome by the Treaty of Lisbon. It might be worth recalling that the ECtHR recently decided
not to apply the Bosphorus presumption of equivalent protection because of the decision of the
Conseil d’Etat not to refer the question before it to the ECJ for a preliminary ruling and also due
to the importance of the issue at stake, in the case Michaud v. France, Appl. No. 12323711,
judgment of 6 March 2013 (final), paras. 105–115.
104. For a different approach, see Canor, “Primus inter pares – Who is the ultimate guardian
of fundamental rights in Europe?”, 25 EL Rev. (2000), 3.
supreme or constitutional courts and the ECtHR.105 The ECJ’s prior

involvement mechanism encourages the positive intervention of the ECJ,
while recognizing the subsidiary external control of the Strasbourg Court. It
seeks to preserve the primary role of both Courts in their respective domains,
on the assumption that the protection of human rights requires the two Courts
to be not rivals for primacy, but rather complementary partners for progressive
evolution in the interest of improving individual protection. This seems the
intimate rationale for the prior involvement mechanism.
105. As suggested in 2003 by the European Parliament resolution on the impact of the
Charter of Fundamental Rights of the European Union and its future status, cited supra note 25,
436.

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Common Market Law Review 50: 1305–1332, 2013.

© 2013 Kluwer Law International. Printed in the United Kingdom.

ACCESSION OF THE EU TO THE ECHR: THE RATIONALE FOR THE

The accession agreement has to tackle a number of issues. Several

2. The legal implications of the EU accession: An outline

Convention’s guarantees. It is worth mentioning that in the realm of competition law it is

political significance should not be underestimated.21 Being part of the

3. The main issues raised by the accession

européen en vue de l’audition du 18 mars 2010, <www.europarl.europa.eu/document/acti

addressed.36 Should that alleged consequence be true, that would hardly be

4. The prior involvement mechanism under the Draft agreement

EU legal order, is usually achieved through the national courts. It might be

decisions vis-à-vis the Contracting Parties according to Article 46 ECHR.

document” pleading for a mechanism “capable of ensuring that a question of

5. The prior involvement rule’s coherence with the ECHR

perspective, a social compact among European citizens.57 The EU legal order

Arguably, the Charter of Fundamental Rights is one of the most unifying

margin of manoeuvre to the Member States when they implement that

In that regard, the prior involvement rule rectifies ex post an inaccurate

6. The prior involvement rule and the EU legal system

In the EU legal order, the accession agreement is a mere international treaty

Union’s competences as defined in the Treaties.77 A Draft agreement

6.1. The fundamental role of the ECJ in protecting individual rights

In the EU, the judicial protection of individuals is and remains anchored to

77. Art. 6(2) TFEU (last sentence).

sincere cooperation, are obliged to ensure, in their territories, the application

82. Ibid., paras. 68–69.

judges, directly, have to secure within domestic legal orders.86 It is a matter of

86. Opinion 1/09, paras. 83–85.

ensure uniformity in the interpretation and application of the common law

A diametrically opposite view holds that the preliminary involvement

autorités nationales, et notamment aux cours et tribunaux, qu’il incombe d’interpréter la

93. Case C-224/01, Köbler, [2003] ECR I-10290, paras. 35–36.

Even this approach is not convincing for it fails to achieve an effective

98. De Schutter, op. cit. supra note 27, section 2.

7. Does the introduction of the mechanism require a revision of the

In conclusion, the prior involvement mechanism is consistent with the ECHR

equivalent protection principle once conceded by the ECtHR to the EU legal

supreme or constitutional courts and the ECtHR.105 The ECJ’s prior

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