First and foremost, EU accession to the ECHR obviously cannot go ahead on the basis of
the 2013 draft agreement. The CJEU has in effect provided a checklist of amendments to
the accession agreement that would have to be enacted to ensure that accession is
compatible with EU law. The amendments would address the following ten issues:
(1) Ensuring Article 53 ECHR does not give authorization for Member States to have
higher human rights standards than the EU Charter, where the EU has fully
harmonized the law;
(2) Specifying that accession cannot impact upon the rule of mutual trust in JHA
matters;
(3) Ensuring that any use of Protocol 16 ECHR by national courts cannot undermine
the EU preliminary ruling system, presumably by ruling out the use of Protocol 16
where EU law issues are involved;
(4) Specifying expressly that Member States cannot bring disputes connected with EU
law before the ECtHR;
(5) Ensuring that, in the co-respondent system, the ECtHR’s assessment of
admissibility does not extend to the power to interpret EU law;
(6) Guaranteeing that the joint responsibility of the EU and its Member States for
ECHR breaches cannot impinge upon Member State reservations to the
Convention;
(7) Preventing the ECtHR from allocating responsibility for ECHR breaches as between
the EU and its Member States;
(8) Ensuring that only the EU institutions can rule on whether the CJEU has already
dealt with an issue;
(9) Providing that the CJEU should be allowed to rule on the interpretation, not just
the validity, of EU law, during the “prior involvement” procedure; and
(10)Curtailing the role of the ECtHR to rule on EU foreign policy matters.