The co-respondent mechanism
Art. 3 of the draft agreement sets out the so-called co-respondent mechanism in which several member-states and/or the EU might have to respond jointly for a particular violation of the ECHR. Based on arguments of both respondent and co-respondent, this might allow the ECtHR to at least check some internal responsibilities in the EU. The first part of Art. 3 (7) provides that the respondent and the co-respondent are jointly responsible for a violation of the ECHR, which should prevent that the ECtHR has to decide based on EU law who is responsible for a particular violation (AG view, para 176). Based on the co-respondent mechanism the Union or an EU Member State can become full parties to proceedings with all corresponding rights and obligations whenever the examination of a violation of the ECHR implies also the scrutiny of a provision of EU law as to its compatibility with the ECHR. This is the case in particular where a violation would only have been avoided by means of a violation of EU law (paras 55 ff.). The draft agreement provides for two possibilities. Based on Art. 3 (5), the ECtHR can invite a party to the ECHR to become co-respondent or decide on a request to intervene as a co-respondent. In the latter case, the ECtHR has to verify whether the relevant requirements are plausibly fulfilled. The CJEU criticizes this point holding that it must be left to the EU and its Member States to examine whether the requirements for the co-respondent mechanism are met (para 220).