Do we still need Article 6(2) TEU? Considerations on the absence of EU accession to the ECHR and its consequences

Callewaert, Johan

doi:10.54648/cola2018142

Cited by 3 publications

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“…109 It has also been pointed out that accession is necessary to address the EU's accountability gaps, and for its credibility and legitimacy. 110 Negotiations have restarted in 2020, and Opinion 2/13 will inevitably play an important role in them. However, other factors will also need to be considered, in particular the legitimate and almost unanimous criticism of Opinion 2/13, 111 and developments in the Court's case law with regard to autonomy 112 and mutual trust.…”

Section: Future Eu Accession To the Echrmentioning

confidence: 99%

The Second Attempt at EU Accession to the ECHR: Opinion 2/13

Ziegler

2021

SSRN Journal

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Section: Future Eu Accession To the Echrmentioning

confidence: 99%

The Second Attempt at EU Accession to the ECHR: Opinion 2/13

Ziegler

2021

SSRN Journal

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Reflections on the Principle of Mutual Trust in EU Law and Judicial Dialogue in Europe

Pellonpää¹

2022

International Actors and the Formation of Laws

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The principle of mutual trust plays an important role in EU law, especially in the area of freedom, security and justice. In its Opinion 2/13 on the planned EU accession to the European Convention on Human Rights (ECHR), the Court of Justice of the European Union (CJEU) considered the draft agreement to be incompatible with EU law, in particular because it did not sufficiently take into account the principle of mutual trust. This chapter examines whether the ECHR is, as suggested by Opinion 2/13, in fact incompatible with EU law and whether this creates an insurmountable obstacle to accession. The chapter argues that the case-law of the two European Courts, rather than confirming such inherent incompatibility, demonstrates a constructive judicial dialogue between them. This is a dialogue in which, in addition to the two supranational Courts, national courts, such as the German Federal Constitutional Court, have given their contribution. While the true nature of the principle of mutual trust in EU law remains subject to debate, close scrutiny reveals it as more of a rebuttable presumption than a full-fledged legal principle. Ultimately, the European and domestic courts involved are shown to have engaged in a useful judicial dialogue that has influenced the shaping of the principle of mutual trust in a manner that can be regarded as satisfactory from the point of view of both the ECHR and the EU.

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ECHR Preamble vs. the European Arrest Warrant: balancing Human Rights protection and the principle of mutual trust in EU Criminal Law?

Daminova

2022

RECL

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As stated in the European Convention on Hu- man Rights Preamble, the aim of the Council of Europe is the achievement of greater unity between its members through the maintenance and realisation of Human Rights and Fundamental Freedoms . Nowadays, the European Union includes the majority of the ECHR signatories (27 of 47) and incorporates the key legal instrument of judicial cooperation in criminal matters, namely the European Arrest Warrant Framework Decision . Nevertheless, the possible effects of the EAWFD on the practice of the European Court of Human Rights remain understudied – despite the crucial need to properly balance the enforcement of the principle of mutual recognition and Human Rights protection in the European Union. Since the first attempts to approach the EAWFD, the Strasbourg Court preferred to find the applications inadmissible (Pianese, Monedero Angora, Stapleton) or to establish a very high threshold for establishing a Convention violation within this context (Pirozzi). It will be argued that the newly developing Strasbourg Court’s case-law on the EAWFD (Castano, Bivolaru/Moldovan, Alosa) could potentially mark a new step in the judicial dialogue be- tween two European Courts. In the Castano and Bivolaru/ Moldovan rulings, the ECtHR – for the first time – found that the EU Member States had breached their obligations under Arts . 2 ( ́right to life ́) and 3 ( ́prohibition of torture ́) ECHR within the European Arrest Warrant context (murder/traffick- ing in human beings charges). At the same time, this interpre- tation opens the floor for discussion on potential applicability of other Convention provisions (Arts . 4, 5, 8, 13) to other offences listed in Art . 2(2) of the EAWFD (such as, for instance, corruption, fraud, computer-related crime etc .). Even though the Strasbourg Court has transposed the CJEU’s benchmarks of the EAW refusals legality assessment – i .e . a risk of inhuman or degrading treatment in the requesting State (Aranyosi/Căldăra ru), the EU Member States ́ courts are now forced – de facto – to consider an additional (ECHR-based) criterion for assessing the legality of refusals to execute the European Arrest Warrants. This can arguably pose further questions upon the entry into force of Protocol No. 15 ECHR which aims at the most effective realisation of the ́subsidiarity ́ principle in the European Convention system.

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Do we still need Article 6(2) TEU? Considerations on the absence of EU accession to the ECHR and its consequences

Cited by 3 publications

References 0 publications

The Second Attempt at EU Accession to the ECHR: Opinion 2/13

The Second Attempt at EU Accession to the ECHR: Opinion 2/13

Reflections on the Principle of Mutual Trust in EU Law and Judicial Dialogue in Europe

ECHR Preamble vs. the European Arrest Warrant: balancing Human Rights protection and the principle of mutual trust in EU Criminal Law?

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