How to move on?
The Opinion will generally render future accession highly difficult and delay it in addition, since already the negotiations of the draft agreement proved protracted and complex and since in the draft agreement suggestions by the CJEU which was represented in the relevant Council committee had already been taken into account.
A number of concrete proposals have been brought forward as a reaction to Opinion 2/13. Some argue thus that accession would make no longer sense under the conditions given by the CJEU, as this would not allow the creation of an effective external surveillance mechanism of EU action with regard to fundamental rights protection. Others propose an amendment of EU primary law – up to an open snub towards the Court. Politically, however, this appears highly difficult, as such an amendment would need to be comprehensive and tackle a number of points. A rather extreme suggestion calls openly for political disobedience against the CJEU: a protocol should be drafted that allows accession of the EU to the ECHR notwithstanding Opinion 2/13. A renegotiation of the draft agreement would be hardly realistic given the notable unwillingness of negotiating partners such as Russia or Switzerland. Again others see the opinion as a welcome step that gives more time to the EU to develop its internal mechanisms for fundamental rights protection, in particular those based on the Charter of Fundamental Rights, before an external surveillance mechanism is installed. Another alternative proposal foresees an amendment of the Treaties which clarifies the status of the ECHR within EU law and upgrades it to ensure instead of an accession to the ECHR a more coherent observance of the ECHR acquis.
The perspective of the ECtHR
Some speculation has also arisen with regard to what changes for the ECtHR as a result of Opinion 2/13. In particular, one may wonder whether the Bosphorus presumption developed in the ECtHR’s jurisprudence could now be questioned. Under this presumption, the ECtHR did not fully release EU Member States of their responsibility for having transferred their activities to the level of an international organisation like the EU, but established after a thorough investigation that the EU’s system of fundamental rights protection according to the state of the law at the time was appropriate in the sense of the ECHR. Early reactions from the ECtHR have already been interpreted as possible signs for a less close cooperation between the two courts in the future.