Opinion 2/13 on Accession to the ECHR: Defending the EU Legal Order against a Foreign Human Rights Court

Abstract

In Opinion 2/13 the CJEU declared that the draft Agreement for Accession of the EU to the ECHR is not compatible with primary EU law, based on a number of objections. This article presents the Opinion and divides the Court's objections in three categories: concerns which are misconceived and should not have been raised by the CJEU at all; concerns for the CJEU's own jurisdiction which are more persuasive, but whose importance is exaggerated by the Court; and concerns to preserve a different standard of fundamental rights protection in EU law derogating from the minimum standard of the Convention-a radical (and unjustified) objection, which cannot be mended by simply modifying the Accession Agreement and which makes accession next to impossible.