Abstract: This article focuses on an almost perennial question: what should the relationship between European Union (EU) law and the European Convention on Human Rights (ECHR) become, in particular whether EU accession remains desirable. In light of the condition formulated by the European Court of Justice (ECJ) in Opinion 2/13 that EU accession can only happen if the doctrine of mutual recognition is protected from human rights review by the European Court of Human Rights (ECtHR). The article argues that the consequence would be a lowering of the fundamental rights protection enjoyed by individuals in the EU in the Area of Freedom, Security and Justice (AFSJ). It concludes that in light of this negative effect on human rights protection, the status quo of indirect review is preferable and that accession should not take place. This conclusion is reached in fi ve overall steps: fi rst, the article briefl y describes the current EU-ECHR relationship and presents three key arguments in favour of EU accession to the ECHR; second, it introduces the AFSJ as a (potential) site of contention between the ECJ and the ECtHR; third, the article recounts the ECJ’s requirements that a reworked accession agreement would need to fulfi l; fourth, it shows how fundamental rights protection in the AFSJ has developed in light of ECHR requirements and asks how this might continue in the absence of accession; and fi fth, it discusses the counterfactual situation of the EU acceding to the ECHR in compliance with the stipulations of the ECJ.
Keywords: EU accession to the ECHR; European Court of Justice; European Court of Human Rights; Area of Freedom, Security and Justice; cross-fertilisation; Charter of Fundamental Rights
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