Much of the Court’s Opinion considers the arguments made by EU Institutions and Member States. Indeed, only just over one quarter of the judgement, about 8 web pages, actually sets out the Court’s own position on compatibility of accession with EU law. This posting will now briefly consider, in order, each of the arguments made by the Court as to why, in its mind, accession would be incompatible with EU law.
First, and significantly, the Court was quick to point out that, to date, only States have been members of the ECHR. The Court disparaged the approach adopted in the draft agreement, which it believed treats the EU as a State, and thus ignored the intrinsic nature of the EU. In contrast, the ECJ has characterized the EU as ‘a new legal order’. Interestingly, in Opinion 2/13, the ECJ asserted that, under international law, the EU is precluded by its very nature from being considered a State. While such a clear statement may come as a relief to those who fear the growth of the EU into a superstate, what follows in the Opinion amounts to a robust declaration of the autonomy of EU law, which has some troubling consequences, and ultimately led the ECJ to find the draft agreement incompatible with EU law. The Court structured the remainder of its arguments under the following headings: