With regard to yesterday’s post on the CJEU’s legal opinion according which the accession of the EU as a party to the European Convention of Human Rights (ECHR) cannot take place in the form proposed by the European Commission, two additional points:
First, the full text of the legal opinion is now available on the Court’s website.
Second, one reader has asked us whether this decision is a reason for concern or relief. With regard to this question, we might answer that this is a choice like between Scylla and Charybdis. The accession to a Convention like the ECHR not only means to acceed to yet another catalogue of human rights, but also to a new enforcement mechanism. One of the arguments made by the CJEU in its legal opinion is that the EU has its own Fundamental Rights Charter, which is to be interpreted by the CJEU itsef, and that measures would have to be taken to ensure that there will be no contradictions between the interpretation of the Charter by the CJEU and the interpretation of the Convention by the ECtHR.
On this, our opinion is that the Convention is the better document (because the Fundamental Rights Charter is indeed very badly drafted and has a dangerous potential of undermining a correct understanding of Human Rights), whereas the CJEU probably is the better law court (as it has so far shown somewhat less inclination towards ideologically motivated judicial activism than the ECtHR. Given its current state of desorientation, we are certainly happy that the ECtHR is being kept out of the EU. Thus on the one hand we have the monster that is the ECtHR, on the other hand the maelstrom of the ill-drafted Fundamental Rights Charter. But with the EU accession to the ECHR we would have had both at the same time.