Towards the end of 2014, the European Court of Justice (ECJ) delivered its
Opinion (2/13) on whether the EU might accede to the European Convention
on Human Rights (ECHR) in the (near) future. In very clear words and using a
number of different arguments, the Court rejected this accession, at least under
the conditions laid down in the so-called Draft Accession Agreement (DAA)
that was concluded in 2013.
This was not the first time that the ECJ had dealt with this question and not the
first time that the Court had argued against such an accession, since this also
happened in 1996 in Opinion 2/94.1
However, this time, both the background
and the circumstances were very different, compared to the situation in 1996.
The negative opinion of the ECJ was much more surprising this time, when the
negotiations necessary to enable the EU to accede, which had gone on since
2010, had advanced much further, and when the political expectations for an
accession were, in most European states (including both EU Member States and
others), much greater. This new situation is most clearly expressed in art. 6 sect.
2 in the Treaty on European Union (TEU), which has, since the Lisbon Treaty
entered into force in 2009, stated that the EU “shall” accede to the ECHR. Also,
the Additional Protocol 14 to the ECHR makes accession easier for the EU than
it was twenty years ago