KAZAN UNIVERSITY LAW REVIEW, 2018, том 3, № 3


KAZAN UNIVERSITY LAW REVIEW ■ Volume 3, Fall 2018, Number 3






                ARTICLES





                                      Alexei Ispolinov

                                      Head of International Law
                                      Department, Lomonosov Moscow
                                      State University



            CONSEQUENCES OF THE DELAY:
            THE PERSPECTIVE OF A NON-EU MEMBER STATE



DOI: 10.30729/2541-8823-2018-3-3-5-15

    Abstract: The following contribution deals with one of the most controversial aspects of human rights protection in the EU, specifically, the question of whether the EU should accede to the European Convention on Human Rights (ECHR or the Convention). The purpose of this article is to recall the history of the drafting process of the Draft of the Accession Agreement (DDA¹) as well as to provide some explanations of the arguments presented by the CJEU in the Opinion 2/13. The author also hopes to shed some light on the position of the Russian Federation as a non-EU state towards further development of the accession issue. Several submissions have already been made. First and foremost, the DDA has been torpedoed by the Court of Justice of the European Union (CJEU) for several valid reasons. Secondly, any further attempts to accommodate the DDA in line with the concerns of the CJEU would be counter-productive as it could lead to de jure segregation of the Council of Europe member states undermining the legitimacy and authority of the European Court of Human Rights (ECtHR). Thirdly, active stance of the ECtHR towards the EU will find support from the non-EU states.
    The Opinion 2/13 of the CJEU has caused feelings of disbelief, disappointment and even dismay among European academia. Most commentators willingly blamed the CJEU for “formalistic and sometimes uncooperative attitude in defense of its own powers vis-a

¹ Draft Agreement of the accession of the European Union to the Convention for the Protection of human rights and fundamental freedoms, Council of Europe, CDDH (2013) 009, http://www.echr.coe. int/Documents/UE_Report_CDDH_ENG.pdf

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vis the European Court of Human Rights”¹, describing the Opinion as a “giant step back”² or even as a “clear and present danger to human rights protection”³. The article explores the history of the drafting process of the DDA and its basic characteristics, examines the CJEU’s position stated in the Opinion 2/13 and discusses possible alternatives in the post-Opinion era.
    The structure of the article is as follows. Section 1 examines the drafting process of the DDA as well as the surrounding political and legal situation. Section 2 argues that the main arguments against the DDA used by the CJEU in its Opinion originate from the specifics of EU legal order. Sections 3 explores different scenarios of the development of relations between the ECtHR and the CJEU. It also presupposes that recent jurisprudence of the ECtHR regarding Bosphorus presumption might be interpreted as modification of the ECtHR’s attitude in relation to the EU. Section 4 concludes.
    Keywords: delay consequences, non-EU member states, legislation, European Convention on Human Rights, the Court of Justice of the European Union.


    Section 1.

    To start with, some commentators wonder if it is true that the Opinion reflects the fears of the CJEU to lose its powers. In the opinion of the present author, an absolute majority of the scholars look at the Opinion from the human rights law perspective, which in its own turn based on the assumption that the EU accession to the Convention will strengthen human rights protection in Europe per se. In the author’s view, the CJEU does not share this attitude, and comprehension of logics of the CJEU requires certain level of knowledge of the specifics of the EU law as interpreted by the CJEU. It is a well-known fact that according to the Lisbon Treaty the European Union “shall accede” to the Convention. However, it is a conditional obligation, since the DDA shall meet the requirements stipulated in the Protocol No. 8 to the TEU. Specifically, the accession shall preserve specific characteristics of the Union and EU law and shall not affect the competences of the Union or the powers of its institutions. The Lisbon Treaty also implicitly presumes that the CJEU should be a final arbiter judging whether these conditions have been met in the DAA. Despite the opinion that primary intention of the Member States as Masters of the Treaties had been the EU accession to the Convention, the Lisbon Treaty left unresolved one principal question. What shall be a priority in the accession process: the accession itself or preservation of the specific EU legal order? It seems that for the Commission as well as for the Member States the prime target was the accession, but not for the Court. For anyone familiar with the doctrines and

¹ Editorial Comments, 52 Common Market Law Review (2015) 1-16.

² Odermatt J. A Giant Step Backwards? Opinion 2/13 on the EU’s Accession to the European Convention on Human Rights

³ Peers S. The CJEU and the EU’s accession to the ECHR: a clear and present danger to human rights protection, http://eulawanalysis.blogspot.co.uk/2014/12/the-cjeuand-eus-accession-to-echr.html

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jurisprudence of the CJEU it was clear from the very beginning that the final answer to this question should be given by the CJEU and, obviously, the Court would be facing a complex dilemma. The CJEU had hinted at this in its Discussion document explicitly saying that the conditions of the accession are “stated in a protocol which is annexed to the Treaties and therefore has the same value as them”.¹ Nevertheless, a public perception of these provisions of the Lisbon Treaty was that the accession was almost a fait accompli and required just some legal framing. Such concentration on the obligation of the EU to accede combined with certain ignorance or underestimation of legal complexity of the tasks stipulated in Protocol 8 resulted in high prior expectations which turned out to be a great disappointment (or “nightmare”, according to S. Peers²) after the Opinion.
    The DAA, negotiated and approved by the Steering Committee, appeared to be a lengthy and complicated document and seemed like a desperate (and to certain extent failed) attempt to solve the problem of Protocol 8. The key provisions of the DDA regarding co-respondent mechanism and prior involvement of the CJEU left a mixed impression as being exclusively based on the presumption of voluntary cooperation and not covering a whole range of potential problems. Some EU policies also include non-EU states, which are yet obliged to fully and unconditionally implement applicable provisions of the EU law. For instance, three EFTA States (Iceland, Liechtenstein, and Norway) are also members of the European Economic Area and shall implement the EU common market provisions. Four non-EU countries (Switzerland, Iceland, Liechtenstein, and Norway) are parties to the Schengen Agreement and the Dublin system (take as an example the ECtHR case of Tarakhel v Switzerland³). The DDA provisions will not be applicable in this case leaving the concerns of prior involvement of the CJEU unresolved. Nevertheless, in the wake of expected approval of the DDA, the critics’ voices remained largely unnoticed.⁴
    Section 2.
    According to the prevailing opinion, the CJEU presented restrictive conditions for the EU accession to the extent that it looks practically impossible.⁵ Moreover, there is a number of explanatory articles containing a detailed analysis of the arguments of

¹ Discussion document of the Court of Justice of the European Union on certain aspects of the accession of the European Union to the European Convention for the protection of Human rights and Fundamental Freedoms, https://curia.europa.eu/jcms/upload/docs/application/pdf/2010-05/ convention_en.pdf

² Peers S. The EU’s Accession to the ECHR: The Dream Becomes a Nightmare, German Law Journal, 2016, vol. 16, no 1, p.

³ ECHR, Tarakhel v. Switzerland, Appl. no. 29217/12, of 4 Nov. 2014

⁴ For critical analysis of the DDA see O’Meara N. A, More Secure Europe of Rights? The European Court of Human Rights, the Court of Justice of the European Union and EU Accession to the ECHR, German Law Journal, 2011, vol.12, no. 10, p. Groussot X., Lock T., Pech L., EU Accession to the European Convention on human rights: a legal assessment of the Draft Accession Agreement of 14 October 2011, Foundation Robert Schuman, European issues, no. 281. 7 November 2011

⁵ Odermatt J. A Giant Step Backwards? Opinion 2/13 on the EU’s Accession to the European Convention on Human Rights

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the Court.¹ Some commentators believe that the Opinion is “fundamentally flawed”² and academia split in an attempt to find a plausible answer to one crucial question -why did the Court do it that way? One could argue that the CJEU acted like a “selfish court” fearing to lose its own exclusivity and competence.³ The present author believes that the arguments of the Court require more balanced approach. The author would also agree with P. Eeckhout on that the Opinion 2/13 shows a profound disagreement between the CJEU and the EU Member States as the originators of the Lisbon Treaty regarding desirability of the EU accession.⁴ One could suggest that the Court believes that EU system of judicial protection of human rights is more efficient that the one under the European Convention and the accession would hinder the process of judicial federalization of the EU. The reason for that is the existence of modern, comprehensive and legally binding Bill of Rights in the form of the EU Charter of fundamental rights and freedoms. Furthermore, the jurisdiction of the CJEU was expanded from December 1, 2014 covering now all highly sensitive human rights matters of the EU Area of Freedom, Security, and Justice (AFSJ) such as asylum, migration, extradition, arrest warrant, etc. As a result, the Court has already lost any practical interest and need in a use of the Convention as a source of inspiration, as it had been the case before the Lisbon era. Moreover, the CJEU, yet avoiding to confirm it openly, makes all efforts to distance the Charter from the Convention and to lessen the influence of the Convention on the EU legal order.⁵
    The position of the CJEU in the Opinion 2/13 is clear: the preservation of the autonomy of the EU legal order is an absolute priority in this case (S. Douglass-Scott even pointed out that the word ‘autonomy’ is used in the document 17 times⁶). However, the Opinion 2/13 is not an isolated incident, but a logical result of the development of the CJEU’

¹ See for instance Douglas-Scott S. Autonomy and Fundamental Rights: The ECJ’s Opinion 2/13 on Accession of the EU to the ECHR, Swedish European Law Journal, special edition 2016, Festschrift for Ulf Bernitz (eds. J. Paju, A. Ward, P. Watson); Piet Eeckhout, Opinion 2/13 on EU Accession to the ECHR and Judicial Dialogue: Autonomy or Autarky?, Fordham international law Journal, 2015, vol. 38, p. 955; Halberstam D. It’s the Autonomy, Stupid!’ A Modest Defense of Opinion 2/13 on EU Accession to the ECHR, and the Way Forward, German Law Journal, 2015, vol. 16, p.105.

² Peers S. The EU’s Accession to the ECHR: The Dream Becomes a Nightmare, op. cit, p. 213.

³ B. de Witte, A Selfish Court? The Court of Justice and the Design of International Dispute Settlement Beyond the European Union, in M. Cremona and A. Thies, The European Court of Justice and External Relations Law: Constitutional Challenges (Hart Publishing, 2014).

⁴ Eeckhout P. op. cit., p. 35

⁵ The recent jurisprudence of the CJEU shows that the Court already tried to minimize the effects of Article 52(3) of the Charter, which requires the consistency between the Charter and the ECHR. In held that “the Article 52(3) of the Charter is intended to ensure the necessary consistency between the rights contained in the Charter and the corresponding rights guaranteed by the ECHR, without thereby adversely affecting the autonomy of EU law and that of the Court of Justice of the European Union”. See CJEU C-294/16 JZ v. v Prokuratura Rejonowa todz - Srodmiescie, Judgment of 28 July 2016, para. 50.

⁶ Douglas-Scott S. op. cit., p. 36.

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doctrine of autonomy of the EU legal order. In the context of the present article it would be naive to undertake a comprehensive analysis of all objections of the Court. It is worth to mention that the CJEU and the ECtHR are two fundamentally different courts with two distinct legal orders. On the one hand, the ECtHR is an international court which supervises performance of the states’ obligations under the Convention. The ECtHR also has an exclusive competence to interpret the provisions of the Convention. On the other hand, the CJEU is a supranational court authorized to review validity of the acts of the EU institutions and actions of the EU Member States as well as to ensure unity and effectiveness of the EU law. According to the CJEU case law, the EU is an autonomous legal order where the EU law has priority over national law of the Member States and international agreements including the Charter of the United Nations (see Kadi-1 case) and the CJEU enjoys an interpretation monopoly. Following this logic, both the ECHR and the DDA in case of the successful accession of the EU to the Convention will become a part of the EU legal order and will be placed below EU primary law, which now includes the EU Charter of fundamental rights. D. Spielmann, former President of the ECHR, admitted that in this construction “protection of fundamental rights is pursued to the extent and only to the extent that it does not undermine the unity and effectiveness of EU law”.¹ Without any doubt, bold and sometimes unpredictable jurisprudence of the ECtHR in interpretation and application of the Convention, which shall be below the EU Charter and founding treaties after the accession, raised significant concerns in Luxembourg.
    One could suggest that the main reason behind the Opinion 2/13 is practical impossibility to reconcile different ambitions and missions of the ECtHR and the CJEU. The ECtHR considers the European Union to be an intergovernmental association of 28 sovereign states, while for the CJEU the EU is an emerging quasi federation. Moreover, the CJEU’s main priority here is “judicial federalization” of Europe and the Court’s position itself (according to its former President Skouris) as a “Supreme Court of the European Union”.²
    The existence of different missions of these courts explains their dramatically different attitudes regarding two sensitive issues: the European Arrest Warrant and the EU Dublin system dealing with asylum seekers and illegal migrants. Cooperation of the EU Member States in these fields is based on the principle of mutual trust, which is one of the principles of the EU legal order. According to this principle, the authorities of the EU Member States are precluded from checking an actual level of observance of rights and freedoms in other Member States in a specific extradition case in question (like in any federation). At the same time, it goes contrary to the established ECtHR case law concerning extradition where it represents international law approach requiring the executing judge to perform such checking.

¹ Spielmann D. The Judicial Dialogue between the European Court of Justice and the European Court of Human Rights Or how to remain good neighbors after the Opinion 2/13,

2

   Besselink L. The CJEU as the European “Supreme Court”: Setting Aside Citizens’ Rights for EU Law Supremacy, Verfassungsblog (2014),

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    Speaking about lack of practical reasons for the CJEU to refer to the Convention, it should suffice to mention a well-known story of how and when the CJEU started to refer to the Convention and to the case law of the ECtHR to strengthen legitimacy and authority of its human rights jurisprudence.¹ The situation changed dramatically after an entry of the Lisbon Treaty into force in 2009 when the EU Charter of fundamental rights and freedoms became legally binding and had been elevated on the level of the EU primary law. The CJEU almost immediately started to use the Charter at the expense of reference to the Convention. L. Glas and J. Krommendijk called such tendency an “increasing Charter centrism of the CJEU”², which could be confirmed by the following statistics. In 20092012, the CJEU referred to the provisions of the EU Charter in 122 judgments, substantially analyzing one or more of its provisions in 27 judgments. In these 27 cases, the ECtHR case law was explicitly referred to in 10 cases, and in the remaining 95 cases the reference was only in passing. The CJEU referred to the Convention in 18 of these 122 cases.³ As one author aptly pointed out, the growing Charter jurisprudence of the CJEU might lessen the need to turn to Strasbourg system even further and create an impression among the EU institutions and Members States that accession is already not necessary in the light of high level of fundamental rights protection within the European legal order.⁴
    Section 3.
    Speaking about the perspectives after the Opinion 2/13, the present author is more skeptical than before⁵ regarding this issue and is ready to admit that the accession will never happen. Any attempts of the EU Member States to continue the accession process ignoring the Opinion or overruling it by making changes to Protocol 8 (as suggested by L. Busselink, who advocated the idea of so-called “notwithstanding protocol”⁶) will undoubtfully fail. The reason for that would be the “joint decision trap”⁷ where all maneuvers to bypass or circumvent the Court would require unanimity between all EU Members States.

¹ See inter alia Mancini F. The making of a constitution for Europe, C.M.L.Rev. 1989, vol. 26, no. 4; Coppel J. & O’Neill A. The European Court of Justice: Taking rights seriously, C.M.L. Rev. 1995, vol. 29; Weler J.H.H. & Lockhart N. “Taking rights seriously” seriously: European Court of justice and its fundamental rights jurisprudence - part I, C.M.L. Rev. 1995, vol. 32.

² Glas L. & Krommendijk J. From Opinion 2/13 to Avotins: Recent Developments in the Relationship between the Luxembourg and Strasbourg Court, Human Rights Law Review, no. 3 (2017), vol. 17, p. 573.

³ Lehtinen E. The European Court of Justice and European Court of Human Rights: A Complex Interaction and Coexistence between the Two Courts, Workshop on the ECHR Tampere 2015, https://blogs.uta.fi/ ECHRworkshop/2016/03/07/lehtinen.

⁴ Krommendijk J. The Use of ECHR Case Law by the Court of Justice after Lisbon: The View of Luxembourg Insiders, 22 Maastricht Journal of European and Comparative Law (2015), p. 835.

⁵ In the article published in Russian in 2012, the present author has already assessed the chances for accession as 50-50: Ispolinov A. Accession of the European Union to Convention for the Protection of Human Rights and Fundamental Freedoms: Pressing Need or Attempt to Reconcile the non-compatible, Russian justice, 2012, no. p.

⁶ Leonard F.M. Besselink, Acceding to the ECHR notwithstanding the Court of Justice Opinion 2/1, http:// verfassungsblog.de/acceding-echr-notwithstanding-court-justice-opinion-213-2.

⁷ Alter K. The European Court’s Political Power: Selected Essays, p. 152.

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    As for the attempts to make further changes in the DDA to meet all the requirements of the CJEU, in practice it would mean a legalized carving out status of the EU in the supervision mechanism of the ECHR despite the calls for “innovative legal thinking” and even “legal ingenuity” to find mutually acceptable solutions.¹ We may join S. Douglass-Scott in her opinion that the accession in compliance with the CJEU’s judgement would not provide effective external control of the EU’s actions.²
    From the perspective of non-EU countries the accession will mean a de jure segregation of all states of the Council of Europe into 2 groups. The first group will include the EU Member States with the Charter of Rights and the CJEU (in coalition with national courts) offering a more effective system of protection of human rights. The other group will be represented by non-EU member states (either candidates to the EU or countries which will never become the EU members (like Russia and Turkey). It may look as a sort of re-affirmation on the level of international treaties of the concerns of some authors who already critisized the Bosphorus presumption as the most vivid example of the existing double standards in the protection of human rights in Europe.³
    Such segregation of the member states of the Council of Europe may seem as a ghetto for non-EU countries and the ECtHR as a court dealing with its inhabitants. For the ECtHR such scenario would mean its gradual marginalization, as its duty would be to do menial preliminary work for the CJEU and to perform the function of the “purgatory” for the countries willing to join the EU. In the opinion of the present author, it will have devastating and detrimental effect on the reputation and effectiveness of the European system of the protection of human rights in general and for ECtHR in particular. The unavoidable existence of double standards of the protection of human rights will undermine the ECtHR’s credibility and legitimacy.
    The risks of such scenario are obvious and it is clear that non-EU member states of the Council of Europe will not be eager to voluntary contribute in its implementation in practice. It is worth to recall that in the process of approval of the final version of the DDA, Russia has already made a statement unequivocally showing the limits of its consent for a special regime envisaged for the EU under the DDA.⁴ Some commentators also agree that the consent of non-EU member states to another round of discussions and further concessions towards the EU will become an issue.⁵

¹ Tacik P. After the Dust Has Settled: How to Construct the New Accession Agreement After Opinion 2/13 of the CJEU, German Law Journal, 2017.

² Douglas-Scott S. op.cit., p. 43.

³ Kuhnert K. Bosphorus - Double standards in European human rights protection?, Utrecht Law Review (2006), vol. 2, issue 2, pp. 177-189.

⁴ Appendix VI, Second negotiation meeting between the CDDH ad hoc negotiation group and the European Commission on the accession of the European Union to the European Convention on human rights.

⁵ Douglas-Scott S, op.cit., p. 42.

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    What could be done to prevent such “ghetto” scenario, which is for obvious reasons unacceptable for Russia? Firstly, it is time to admit that the accession on the terms stipulated by the CJEU is inadmissible. The author would also like to refer to Steve Peers, who pointed out that it has unfortunately become necessary to oppose the EU’s accession, instead of supporting it.¹
    Secondly, the ECtHR is equipped well enough and ready to perform indirect super-vision of all EU acts even without the accession and shall re-configurate its attitude towards the EU formulated in the well-known Bosphorus presumption and even admit joint responsibility of the EU Member States for the acts of EU institutions.² The ECtHR should more thoroughly review actions of the EU Member States thus performing indirect review of the EU law (80% of national law of EU Member States is literal implementation of the EU law³).
    Some commentators have already debated the future of the Bosphorus presumption and different scenarios of the ECtHR’s future after the Opinion 2/13.⁴ Under the first scenario the ECtHR would apply the doctrine as if nothing ever happened. According to the second scenario, the ECtHR could decide to abandon the Bosphorus doctrine completely. Third and the most realistic scenario presupposes that ECtHR will apply the doctrine in a stricter way. The recent judgment of the ECtHR revealed that the Court preferred the last option. In the Avotins⁵ case the ECtHR found out that protection of human rights in the EU had been manifestly deficient in the field of the EU law dealing with a mutual recognition of the civil court’s awards, even though the ECtHR concluded that the presumption could not be rebutted. Obviously, via this judgment the ECHR intended to influence the CJEU to soften its strict application of the principle of mutual trust in certain areas. The same situation occurred after the ECtHR’s judgment in M.S.S. case⁶ ⁷, when the CJEU had to adapt its own position to its further asylum jurisprudence. The CJEU’s recent case law shows that such pressure, even in indirect form, could be successful. For instance, in its judgment in joined cases Aranyosi and Caldararu of 5 April 20 1 67, the CJEU agreed that the executing national judge can postpone the execution of European arrest warrant and request supplementary

¹ Peers S. The EU’s Accession to the ECHR: The Dream Becomes a Nightmare, p. 222.

² In the DSR Senator Lines GmbH case from 2004, the applicant lodged a complaint before the ECHR alleging an infringement of Article 6 of the ECHR by directed against all EU Member States for the decision of the EU Commission to impose a fine for the violation of the competition rules. Unfortunately, the case was announced inadmissible as the applicant lost a status of victim winning the annulment case in the Court of First Instance. As a result the ECHR missed a chance to announce Member States’ responsibility for a Community act.

³ Maslias R. Converting European terminology database IATE into world’s largest multilingual dataspace, P. Faini (ed.), Terminological Approaches in the European Context Newcastle: Cambridge Scholars Publishing, 2017, p. 13.

⁴ Glas L. & Krommendijk J. op.cit., p. 578.

⁵ ECHR, Avotins v. Latvia, Application No 17502/07, Merits and Just Satisfaction, 26 May 2016.

⁶ ECHR, M.S.S. v. Belgium and Greece. Judgment of 21 January 2011.

7 CJEU, Joined Cases C-404/15 and C-659/15, Aranyosi and Caldararu, judgment of 5 April 2016.

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information, if there are systemic problems with regard to conditions of detention in the issuing Member State. There is no doubt that the CJEU has come to such conclusions having in mind ECtHR’s pilot judgment against two EU member states (Hungary and Bulgaria), where the ECtHR found systemic problems within Bulgarian prison system and different detention facilities in Hungary.¹
    From another angle, the Opinion 2/13 could be considered as a challenge for the ECtHR. If the ECtHR is willing to accept this challenge, it would be wise to reconsider its relationships with constitutional courts of the Council of Europe and the ones of the EU Member States. All of them by their nature are the ECtHR’s allies and the most obvious victims of the expansionist policy of the CJEU since the beginning of the European integration.² Now these courts are struggling for their own place in the evolving European constitutional order and their joint efforts may influence the position of the CJEU. The saga of the EU Data Retention Directive provides a colorful example. Initially the EU Directive requiring the telecom companies to secure the storage of all calls and messages of the customers for a certain period³ has been unsuccessfully challenged before the CJEU by two EU member states.⁴ However, only after the revolt of several constitutional courts, which made inapplicable the implementation of domestic legislation, the Directive had been entirely annulled by the CJEU as violating the EU Charter’s provisions.⁵
    Section 4.
    To conclude, the present author would like to emphasize once again that the accession of the EU to the Convention is not in agenda for the near future and, in fact, could never happen. The CJEU’s actual need in the European Convention seems to be less obvious year by year. The raise of power of coalition of the CJEU and national courts of the EU Member States could result in gradual minimization of involvement of the ECtHR in the EU human rights issues.
    In case of resumption of the DDA negotiation process to meet all the requirements of the CJEU, it is necessary to stress that the accession shall not be done by any means at


¹ ECHR, Neshkov and others v. Bulgaria (applications nos. 36925/10, 21487/12, 72893/12, 73196/12, 77718/12 and 9717/13), Grand Chamber judgment, 27.01.2015, Varga and others v. Hungary (application nos. 14097/12, 45135/12, 73712/12, 34001/13, 44055/13, and 64586/13), Chamber judgment of 10.03.2015.

² Some authors described the constitutional courts of the EU member states as “the institutions whose authority has been challenged most since 1957” or “Most Disparaged Branch” in the EU Constitutional”, see M. Dicosola, C. Fasone & I. Spigno, Foreword: Constitutional Courts in the European Legal System After the Treaty of Lisbon and the Euro-Crisis, German Law Journal, 2015, vol. 16, no. 6, p. 1317-1318.

³ Directive 2006/24/EC of the European Parliament and of the Council of 15 March 2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks. O. J. OJ L 105, 13.4.2006, p. 54-63.

⁴ ECJ. Ireland v. European Parliament and European Council. Case No. C-301/06 [2009]. Judgment of 10 February 2009. ECR I-593.

⁵ ECJ. Joined cases Digital Rights Ireland Ltd v Minister for Communications, Marine and Natural Resources. Case No. C-293/12, and Karntner Landesregierung. Case No. C-594/12 [2014]. Judgment of 8 April 2014. ECR I-238.

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expense of authority, legitimacy and reputation of the ECtHR. The author believes that the Russian Federation will support a more stringent attitude of the ECtHR towards the EU. At the same time, Russia expects and welcomes active involvement of the ECtHR in strengthening human rights dimension in the Eurasian Economic Union through review of the acts of its member states parties of the Convention (Russia and Armenia).

    References

    Alter J., The European Court's Political Power: Selected Essays, p. 152.
    Besselink L., The CJEU as the European “Supreme Court”: Setting Aside Citizens’ Rights for EU Law Supremacy, Verfassungsblog (2014).
    Coppel J. & O’Neill A., The European Court of Justice: Taking rights seriously, C.M.L.Rev. 1995, vol. 29.
    Douglas-Scott S., Autonomy and Fundamental Rights: The ECJ’s Opinion 2/13 on Accession of the EU to the ECHR, Swedish European Law Journal, special edition 2016, Festschrift for Ulf Bernitz (eds. J Paju, A Ward, P Watson).
    Dicosola M., Fasone C. & Spigno I., Foreword: Constitutional Courts in the European Legal System After the Treaty of Lisbon and the Euro-Crisis, German Law Journal, 2015, vol. 16, no. 6, p. 1317-1318.
    Eeckhout P., Opinion 2/13 on EU Accession to the ECHR and Judicial Dialogue: Autonomy or Autarky?, Fordham international law Journal, 2015, vol. 38, p. 955.
    Glas L. & Krommendijk J., From Opinion 2/13 to Avotins: Recent Developments in the Relationship between the Luxembourg and Strasbourg Court, Human Rights Law Review, no. 3 (2017), vol. 17, p. 573.
    Groussot X., Lock T., Pech L., EU Accession to the European Convention on human rights: a legal assessment of the Draft Accession Agreement of 14 October 2011, Foundation Robert Schuman, European issues, no. 281. 7 November 2011.
    Halberstam S.D., It's the Autonomy, Stupid!' A Modest Defense of Opinion 2/13 on EU Accession to the ECHR, and the Way Forward, German Law Journal, 2015, vol. 16, p. 105.
    Ispolinov A., Accession of the European Union to Convention for the Protection of Human Rights and Fundamental Freedoms: Pressing Need or Attempt to Reconcile the non-compatible [Prisoedinenie Evropejskogo sojuza k Konvencii o zashhite prav cheloveka i osnovnyh svobod: nasushhnaja neobhodimost' ili popytka soglasovanija nesovmestimyh] // Rossijskaya yusticiya = Russian justice, 2012, no. p. (in Russian).
    Krommendijk J., The Use of ECHR Case Law by the Court of Justice after Lisbon: The View of Luxembourg Insiders, 22 Maastricht Journal of European and Comparative Law (2015), p. 835.
    Kuhnert K., Bosphorus - Double standards in European human rights protection?, Utrecht Law Review (2006), vol. 2, issue 2, pp. 177-189.
    Leonard F.M. Besselink, Acceding to the ECHR notwithstanding the Court of Justice Opinion 2/1, http://verfassungsblog.de/acceding-echr-notwithstanding-court-justice-opinion-213-2.