At the outset, the CJEU ruled that the case was admissible,11 even though the internal rules
that would regulate the EU’s involvement in the ECHR had not yet been drafted. In fact,
the CJEU said that these internal rules could not be the subject matter of the opinion, even
if they had been drafted.
Next, the Court made some preliminary points,13 asserting for the first time expressly that
the EU is not a state, and (in effect) that the EU system is sui generis.
The Court also asserted that it was important to ensure the primacy and direct effect of EU law, referring also to the EU’s goal of an “ever closer union.”
The Court then ruled that the draft agreement was incompatible with EU law, for five main
reasons. Firstly, it did not take account of the specific characteristics of EU law in three
respects. It did not clearly curtail the possibility of Member States having higher human
rights standards than EU law, even though the CJEU had ruled, in the 2013 Melloni
judgment, that Member States could not have higher standards than the EU Charter of
Rights when the EU has fully harmonized the law and the EU legislation is itself compatible with the ECHR and the Charter. Similarly, the draft agreement did not provide for the
application of the rule of “mutual trust” in Justice and Home Affairs (JHA) matters, which
allows Member States to presume that all other Member States are “complying with EU
law and particularly with the fundamental rights recognized by EU law,” except for
“exceptional circumstances.” Also, the agreement failed to rule out the possibility that
when applying Protocol 16 to the Convention, which provides for national courts to send
questions to the ECtHR on interpretations of the ECHR, those national courts would ask the
ECtHR to rule on EU law issues before they asked the CJEU. This would circumvent the
EU’s preliminary ruling procedure.