The Rule of Law, Fundamental Rights, the EU’s Common Foreign and Security Policy and the ECHR: Quartet of Constant Dissonance?

Thomas Giegerich

doi:10.5771/1435-439X-2024-4-590

Contents
- Chapter Expand | CollapseAuthorsPage
- 459–460 Titelei/Inhaltsverzeichnis 459–460
- 461–462 Introduction Marc Bungenberg Marc Bungenberg 461–462
- 463–485 The Rule of Law in International Investment Law and Arbitration as Reflected in the Work of the ILA August Reinisch August Reinisch 463–485
- 486–516 Rule of Law and International Commercial Arbitration Helmut Ortner, Martin Hackl Helmut Ortner, Martin Hackl 486–516
- 517–538 Rule of Law in Organised Sport Björn Hessert Björn Hessert 517–538
- 539–567 Process Failure: What Does the Lack of Appellate Review Mean for Due Process of Law in WTO Disputes? Rodrigo Polanco, Sean Stacy Rodrigo Polanco, Sean Stacy 539–567
- 568–589 Rule of Law Considerations for a CoE Special Tribunal for Ukraine: Lessons from the ECtHR Christina Binder, Philipp Janig Christina Binder, Philipp Janig 568–589
- 590–633 The Rule of Law, Fundamental Rights, the EU’s Common Foreign and Security Policy and the ECHR: Quartet of Constant Dissonance? Thomas Giegerich Thomas Giegerich 590–633
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ZEuS Zeitschrift für Europarechtliche Studien , page 590 - 633

The Rule of Law, Fundamental Rights, the EU’s Common Foreign and Security Policy and the ECHR: Quartet of Constant Dissonance?

Autoren

Thomas Giegerich

DOI
- doi.org/10.5771/1435-439X-2024-4-590
- ISSN: 1435-439X
- ISSN online: 2942-3589
Abstract

The rule of law defect in the Treaties caused by the jurisdictional carve-out in Art. 24(1) subpara. 2 last sentence TEU and Art. 275 TFEU regarding the CFSP can be fully rectified only by an ordinary Treaty revision pursuant to Art. 48 TEU. While the ECJ has considerably extended its jurisdiction into the CFSP area, it could there, from its own power, only approximate without completely realising the rule of law value of Art. 2 TEU. Yet, the Court has recently missed the opportunity to extend that jurisdiction to all cases in which a CFSP act arguably violates fundamental rights. That would have been possible on the basis of its power under Art. 275(2) TFEU to monitor compliance with Art. 40 TEU, read together with the prohibition of adopting legislative acts in the CFSP. Instead, the ECJ introduced an indeterminate political question doctrine into EU law. Therefore, the CFSP obstacle to the EU’s accession to the ECHR, which the ECJ wrongly assumed in Opinion 2/13, has not been entirely removed. It remains to be seen how the EU Member States will internally solve that last remaining impediment to compliance with Art. 6(2) TEU. This they promised to the other Convention States in 2023, with whom they preliminarily agreed on a Revised Draft Accession Agreement that overcomes all the other objections in the ECJ’s Opinion 2/13. The article suggests that the Member States should jointly and in concert with the three competent EU institutions submit the present Revised Draft Accession Agreement as it is, without further delay, to the ECJ under Art. 218(11) TFEU and convince the Court of removing its unnecessary CFSP obstacle to the EU’s ECHR accession in one way or another.
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