Arguably, the intensity of review used by the ECtHR in all likelihood in this context will be rather low; moreover, no effectively binding interpretation of the distribution of powers takes place.
As a further point of criticism the Court finds fault in the joint responsibility provided for in Art. 3 (7) of the draft agreement for the respondent and the co-respondent. This could lead to a Member State being held to be responsible together with the EU of a violation of a provision of the ECHR in respect of which said Member State has made a reservation (para 227). This would contradict protocol n° 8 to the Treaties which prescribes that the agreement on the accession of the EU to the ECHR has to ensure that nothing therein affects the particular situation of the Member States in relation to the ECHR, in particular in relation to reservations.
This argument similarly raises some questions. First, the EU can only become co-respondent in proceedings relevant to EU law when a Member State is respondent in front of the ECtHR. This is already excluded if there is a relevant reservation by that Member State. Second, neither will the ECtHR invite a Member State to intervene as co-respondent if there exists a relevant reservation by that Member State, nor will a Member State request to intervene in such a case. It therefore remains unclear how the joint responsibility mechanism is supposed to overrule in practice an existing valid reservation.
Finally, the CJEU criticizes – arguably correctly – that according to Art. 3 (7) of the draft agreement the ECtHR could decide based on the arguments of the respondent and the co-respondent, having sought the views of the applicant, that only one of the two is responsible for a violation. This would constitute again necessarily a decision based on EU law concerning the distribution of powers. As that decision is taken by the ECtHR, it could adversely affect this distribution (paras 230-1). This assessment would also remain the same if the ECtHR were to decide exclusively based on the arguments of the respondent and the co-respondent without hearing the applicant; even if by these means the ECtHR would merely „confirm“ an agreement reached by the respondent and the co-respondent on the distribution of responsibility, this would concern a question falling within the exclusive competence of the CJEU (para 234).