49
UDC: 342.7:347:061.1EU
Lina Burkelc Juras
*
Aleš Ferčič
**
Opinion 2/13: 
Game Over or Just Another Pit-Stop?
1. Introduction
In the controversial Opinion 2/13,
1
 the Court of Justice of the EU (CJEU) took a 
clear and unambiguous position—the Draft Agreement on the accession of the EU to 
the European Convention on Human Rights (ECHR) is not compatible with Article 
6(2) of the T reaty on EU or Protocol No. 8 to the ECHR. Consequently, the agreement 
envisaged may not enter into force unless it is amended or the T reaties are revised.
2
Both, the opinion as such as well as its reasoning were criticised soon after the do-
cument became publicly available.
3
 It seems Opinion 2/13 has more foes than friends. 
*
 Doctoral student at the University of Maribor, Faculty of law, lina.burkelcjuras@gmail.com.
**
 Dr. iur., Associate professor at the University of Maribor, Faculty of law, ales.fercic@um.si.
1
 Opinion 2/13, ECLI:EU:C:2014:2454.
2
 See Article 218(11) TFEU.
3
 Ritmeyer and Pirker stated: “Instead of at least opting for a somewhat encouraging wording that 
could serve as a road map for the Commission, the Court, however, decided to hand down a 
no spread over nine pages.” See: Reitmeyer, Pirker, Opinion 2/13 of the CJEU on Access of the 
EU to the ECHR – One step ahead and two steps back (2015), URL: http://europeanlawblog.
eu/2015/03/31/opinion-213-of-the-court-of-justice-on-access-of-the-eu-to-the-echr-one-step-
ahead-and-two-steps-back/. See also: Douglas-Scott, Opinion 2/13 on EU accession to the ECHR: 
a Christmas bombshell from the CJEU, URL: http://verfassungsblog.de/opinion-213-eu-accession 
-echr-christmas-bombshell-european-court-justice-2/; Lazowski, Wessel, When Caveats Turn into 
Locks: Opinion 2/13 on Accession of the European Union to the ECHR (2015); Peers, The EU’s 
Accession to the ECHR: The Dream Becomes a Nightmare (2015), p. 213; Shleina, Opinion 
2/13: Some Further Reflections, URL: https://blogs.kcl.ac.uk/kslreuropeanlawblog/?p=966#.
3

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Zbornik znanstvenih razprav – LXXIX. letnik, 2019, Perspektive prava Evropske unije
Therefore, in this article, we first light up and analyse major concerns of the CJEU as 
stressed in Opinion 2/13 and then discuss possible scenarios regarding the EU accession 
to the ECHR.
Prior to discussing Opinion 2/13, we would like to clearly emphasise there should be 
no dispute regarding the position that the EU accession to the ECHR cannot be accom-
plished without prior modification of the ECHR since the EU, unlike other contracting 
parties of the ECHR, is not a state. Modification of Article 59 of the ECHR was a mere 
precondition for the discussed accession. Moreover, we assume that further modifica-
tions of the Draft Agreement and/or of the Treaties
4
 are unquestionably needed and 
consequently all the criticism of the CJEU because of Opinion 2/13 was not justified. 
Yet, the question remains which modifications of the Draft Agreement are vital and what 
could and should be done on the side of the EU and its legal system having in mind the 
limits, arising from its specific characteristics.
5
 Therefore, a challenging balancing is nee-
ded, also in the light of the different roles and functions of the CJEU and the European 
Court of Human Rights (ECtHR).
6
 It seems there is more than just one scenario for 
reaching this balance and the desired EU’s accession to the ECHR.
XGqmCK3MyRs; and others. Some, however, also found, that »the ruling of the CJEU is actually 
not that shocking”. See: Brabcová, Accession of the European Union to the European Convention 
on Human Rights, URL: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2791028, p. 7.
4
 Indeed, it is not highly likely that the Treaty will be modified solely because of the EU’s accession 
to the ECHR. However, we believe that the EU is at a crossroads, which demands proper action at 
all levels, including the modification of the T reaties. Thus, when the T reaties will be “opened”, that 
could present a good opportunity to amend the accession provision and relating protocol.
5
 At this point, it is worth mentioning that Article 6(2) TEU and the Protocol (No. 8) define chal-
lenging accession conditions aiming to preserve special characteristics of the EU and its law, which 
are binding for the CJEU. In this regard, the CJEU highlighted the following special characteristics: 
(conferred or assigned) competences of the EU, institutional structure and powers of institutions 
of the EU, autonomous legal system, primacy of EU law and direct effect of certain provisions, EU 
values and aims, mutual trust and sincere cooperation, protection of fundamental rights, judicial 
system, etc. In short, the CJEU pointed out that the EU is not comparable to any international 
organisation, it is unique, that is to say, a legal person of its own kind (sui generis). Moreover, also 
EU legal system or EU law is unique; it is supranational rather than classical international law and 
after EU law penetrates into the legal system of an individual Member State, according to its own 
rules and it becomes integral part of that legal system having constitutional character.
6
 Polakiewicz notes: “The European Union has acquired more and more competences in areas directly 
affecting the daily lives – and the fundamental rights – of individuals. Both making the EU Charter 
of Fundamental Rights legally binding and acceding to the ECHR are responses to this develop-
ment. They ensure that the legal protection of human rights is strengthened internally – within 
the legal order of the EU – as well as externally, by making that legal order subject to the ECtHR’s 
judicial review. It is the combination of these two measures that will ensure better protection for 
individuals, legal certainty and coherence in fundamental rights protection all over Europe.” See: 

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Lina Burkelc Juras, Aleš Ferčič – Opinion 2/13: Game Over or Just Another Pit-Stop?
2. Opinion 2/13
In Opinion 2/13, the CJEU highlighted several objections against the Draft 
Agreement and its compatibility with EU law which are related to:
1. The autonomy of the EU legal system (in relation to the external judicial control and 
Article 53 of the ECHR, to principle of mutual trust between the Member States, and 
to the advisory opinion of the ECtHR);
2. The dispute settlement and Article 344 of the TFEU;
3. The co-respondent mechanism;
4. The procedure for the prior involvement of the CJEU;
5. The judicial control in the CFSP matters.
For practical reasons, we now first point to the view of AG Kokott before turning to 
the analysis of the CJEU’s arguments. AG Kokott highlighted several shortcomings that 
might emanate from the Draft Agreement, yet, she argued they are manageable.
7
 In her 
view, the Draft Agreement could be compatible with EU law, provided it is ensured, in a 
way, binding under international law, that certain modifications or conditions are met.
8
 
At this point, we do not want to make a premature judgment neither of the view of AG 
Kokott nor of the opinion of the CJEU. However, it seems that AG Kokott took a much 
milder approach than the CJEU.
9
 Such an assessment can only be made after a thorough 
Polakiewicz, EU law and the ECHR: Will EU Accession to the European Convention on Human 
Rights Square the Circle?, URL: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2331497.
7
 Despite the AG Kokott’s criticism of a number of points in the Draft Agreement, she suggested 
that the CJEU should avoid pronouncing the Draft Agreement incompatible with the T reaties and 
instead hold that the Draft Agreement was compatible with EU law if certain amendments were 
undertaken following the Court’s opinion. See: View of AG Kokott, para. 279.
8
 Namely that: – having regard to the possibility that they may request to participate in proceed-
ings as co-respondents pursuant to Article 3(5) of the Draft Agreement, the EU and its Member 
States are systematically and without exception informed of all applications pending before the 
ECtHR, in so far and as soon as these have been served on the relevant respondent; – requests by 
the EU and its Member States pursuant to Article 3(5) of the Draft Agreement for leave to become 
co-respondents are not subjected to any form of plausibility assessment by the EctHR; – the prior 
involvement of the CJEU pursuant to Article 3(6) of the Draft Agreement extends to all legal issues 
relating to the interpretation, in conformity with the ECHR, of the EU primary law and the EU 
secondary law; – the conduct of a prior involvement procedure pursuant to Article 3(6) of the Draft 
Agreement may be dispensed with only when it is obvious that the CJEU has already dealt with 
the specific legal issue raised by the application pending before the ECtHR; – the principle of joint 
responsibility of respondent and co-respondent under Article 3(7) of the Draft Agreement does not 
affect any reservations made by contracting parties within the meaning of the Article 57 ECHR; 
and – the ECtHR may not otherwise, under any circumstances, derogate from the principle, as laid 
down in Article 3(7) of the Draft Agreement, of the joint responsibility of respondent and co-re-
spondent for violations of the ECHR found by the ECtHR.
9
 This is not to say, however, AG Kokott identified no shortcomings of the Draft Agreement.

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Zbornik znanstvenih razprav – LXXIX. letnik, 2019, Perspektive prava Evropske unije
analysis of the concerns that the CJEU pointed out in Opinion 2/13. Thus, the authors 
offer the aforementioned final assessment in the last section of this article.
2.1. The Principle of Autonomy of the EU Legal System
The principle of autonomy of the EU legal system is a fundamental legal principle 
and one of the earliest creations of the then Court of Justice.
10
 By its very nature, the 
principle in question is relevant in almost every clash between EU law and classical in-
ternational law.
11
 The analysis of the case law reveals its frequent use. Not surprisingly, 
this principle was also used as an argument against the Draft Agreement on more than 
one occasion in Opinion 2/13.
12
 The CJEU pointed out, inter alia, that the autonomy, 
enjoyed by EU law in relation to the laws of the Member States and in relation to inter-
national law, requires the interpretation of fundamental rights to be ensured within the 
framework of the structure and objectives of the EU. The CJEU then stressed insufficient 
consideration of the special features of EU law, and it found, inter alia, a breach of the 
principle of autonomy of the EU legal system. More precisely, it found several breaches, 
which are, according to the CJEU, not questions of minor, but rather of great importan-
ce. Consequently, the CJEU pulled an “emergency Opinion 2/13 brake”.
2.1.1. External Control and Article 53 of the ECHR
In case of the EU’s accession to the ECHR, the EU or its institutions, including the 
CJEU, would be subject to the control mechanisms provided for by the ECHR and, in 
particular, to the decisions and the judgments of the ECtHR. As the CJEU explained 
in Opinion 2/13, such external control would not be, in principle, a priori incompati-
ble with the Treaties.
13
 Nevertheless, the CJEU has also declared that an international 
agreement, such as the ECHR, may affect the powers of the CJEU only if the indispen-
sable conditions for safeguarding the essential character of those powers are satisfied 
and, consequently, there is no adverse effect on the autonomy of the EU legal system.
14
 
In particular, any action by the bodies, given decision-making powers by the ECHR, as 
provided for in the agreement envisaged, must not have the effect of binding the EU and 
its institutions, in the exercise of their internal powers, to a particular interpretation of 
the rules of EU law. That is to say, the CJEU is willing to accept the fact that, on the one 
hand, the interpretation of the ECHR provided by the ECtHR would, under internatio-
nal law, be binding on the EU and its institutions, including the CJEU, and that, on the 
10
 See 6/64, Costa vs. ENEL, ECLI:EU:C:1964:66.
11
 Similar: Rossem, The Autonomy of EU Law: More is Less? (2013), pp. 19–20.
12
 For example in Opinion 2/13, paras. 183, 194, 197, 201, 234.
13
 This approach can be traced back in the earlier case law; see for example Opinion 1/09.
14
 Ibid.

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Lina Burkelc Juras, Aleš Ferčič – Opinion 2/13: Game Over or Just Another Pit-Stop?
other, the interpretation by the CJEU of a right recognised by the ECHR would not be 
binding on the control mechanisms provided for by the ECHR, particularly the ECtHR. 
However, the situation is rather different when it comes to the (remaining)
15
 EU law 
and its interpretation by the CJEU. Namely, the CJEU emphasised that it should not 
be possible for the ECtHR to call into question the CJEU’s findings concerning the ra -
tione materiae scope of EU law, for the purposes, in particular, of determining whether a 
Member State is bound by fundamental rights of the EU. In this regard, the CJEU, unli-
ke AG Kokott, is concerned about Article 53 of the ECHR, a provision similar to Article 
53 of the Charter. Both provisions define a safeguard for the current level of protection 
of human rights and fundamental freedoms.
16
 However, while the CJEU believes it can 
limit effects of Article 53 of the Charter as demonstrated in the case C-399/11, Melloni,
17
 
it is convinced the same cannot be true for Article 53 of the ECHR (and its interpreta-
tion by the ECtHR), which could, according to the CJEU, enable the Member States to 
bypass Article 53 of the Charter.
18
 Therefore, the CJEU posed a demand for a so-called 
coordination mechanism, which could effectively prevent the alleged circumvention by 
appropriate coordination of Article 53 of the ECHR with Article 53 of the Charter, so 
that the power granted to the Member States by Article 53 of the ECHR is limited—
with respect to the rights recognised by the Charter that correspond to those guaranteed 
by the ECHR—to what is necessary to ensure that the level of protection provided for 
by the Charter and the primacy, unity and effectiveness of EU law are not compromised.
Indeed, the Draft Agreement does ensure a kind of coordination, but certainly not as 
far-reaching as demanded by the CJEU.
15
 In case of the EU’s accession to the ECHR, the convention becomes an integral part of the EU legal 
system and thus part of EU law.
16
 The terms »human rights and fundamental freedoms« or »fundamental rights« are used inter-
changeably throughout the article when discussing human rights and fundamental freedoms as 
defined both in the Charter and the TEU, except when the context clearly shows that only the 
fundamental rights as defined by the Charter are meant.
17
 The CJEU has interpreted Article 53 of the Charter in a way that the application of national stan-
dards of protection of fundamental rights shall not compromise the level of protection provided for 
by the Charter or the primacy, unity and effectiveness of EU law.
18
 See Opinion 2/13, para. 189: “In so far as Article 53 of the ECHR essentially reserves the power of 
the Contracting Parties to lay down higher standards of protection of fundamental rights than those 
guaranteed by the ECHR, that provision should be coordinated with Article 53 of the Charter, as 
interpreted by the Court of Justice, so that the power granted to Member States by Article 53 of 
the ECHR is limited - with respect to the rights recognized by the Charter that correspond to those 
guaranteed by the ECHR - to that which is necessary to ensure that the level of protection provided 
for by the Charter and the primacy, unity and effectiveness of EU law are not compromised.”

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Numerous scholars have criticised the CJEU position mentioned above.
19
 Some of 
them stressed that in essence the CJEU demands that the ECtHR must respect the prin-
ciples of primacy, unity and effectiveness of EU law, and to treat them as more important 
than the rights stemming from the ECHR.
20
 Some have even argued that the CJEU does 
not even try to hide that it deems EU law and the Charter more important than other 
legal sources, including the ECHR,
21
 and that it seems like the CJEU believes that in 
order for the EU’s accession to the ECHR to happen, the ECHR should only play a bac-
kground role.
22
 Such criticism can be described as a kind of overreaction, yet, this does 
not mean the CJEU is (totally) right.
As already explained in this article, after EU law or more precisely, acts forming EU 
law, penetrate into the legal system of an individual Member State, they become an inte-
gral part of their respective legal systems having constitutional character. In other words, 
the Member States adopt EU law which they directly help to create not only in the pro-
cess of forming the Treaties but also indirectly within the EU institutions, as their own 
law, which is similar to situations where they adopt international agreements, such as 
the ECHR (the latter also becomes domestic law after it successfully penetrates into the 
respective legal system).
23
 What is more, EU law takes precedence within the legal system 
of respective Member States over all other acts, which form this system, including over 
their constitutions. Therefore, the Member States are bound by ‘their’ EU law when they 
deal with human rights protection
24
 and, consequently, Article 53 of the ECHR cannot 
19
 For example: Douglas-Scott, Opinion 2/13 on EU accession to the ECHR: a Christmas bombshell 
from the CJEU, URL: http://verfassungsblog.de/opinion-213-eu-accession-echr-christmas-bomb-
shell-european-court-justice-2/; Peers, The CJEU and the EU’s accession to the ECHR: a clear and 
present danger to human rights protection, URL: http://eulawanalysis.blogspot.si/2014/12/the-cjeu 
-and-eus-accession-to-echr .html; Reitmeyer , Pirker , Opinion 2/13 of the CJEU on Access of the EU to 
the ECHR – One step ahead and two steps back, URL: http://europeanlawblog.eu/2015/03/31/opin-
ion-213-of-the-court-of-justice-on-access-of-the-eu-to-the-echr-one-step-ahead-and-two-steps 
-back/.
20
 Compare: Peers, The CJEU and the EU’s accession to the ECHR: a clear and present danger to hu-
man rights protection, URL: http://eulawanalysis.blogspot.si/2014/12/the-cjeu-and-eus-accession 
-to-echr.html.
21
 Ibid.
22
 Compare: Reitmeyer, Pirker, Opinion 2/13 of the CJEU on Access of the EU to the ECHR – One step 
ahead and two steps back, URL: http://europeanlawblog.eu/2015/03/31/opinion-213-of-the-court 
-of-justice-on-access-of-the-eu-to-the-echr-one-step-ahead-and-two-steps-back/.
23
 The same would be also true in case of the EU’s accession to the ECHR. The latter would become 
an integral part of the EU legal system or let us say of EU law. Its (hierarchical) position within 
the EU legal system would be subject to Article 216(2) TFEU, namely, “under” the TEU, TFEU, 
Protocols and the Charter, but “above” the regulations, directives and other acts of EU institutions.
24
 Also in cases that fall outside the scope of application of the Charter, the Member States must act 
in accordance with the (remaining) EU law, including with the principles of primacy, unity and 

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Lina Burkelc Juras, Aleš Ferčič – Opinion 2/13: Game Over or Just Another Pit-Stop?
change this fact. Moreover, we believe the ECtHR should apply or respect the Charter 
and all other sources of EU law as the constitutional law of the respective Member States. 
This ECtHR obligation is already established by Article 53 of the ECHR, according to 
which the ECtHR must respect “the laws of any High Contracting Party” (and in this 
regard the ECtHR also the CJEU’s case law).
25
 T o ensure greater clarity in this regard, the 
new accession agreement shall include some kind of an interpretative provision, declara-
tion or explanation report related to Article 53 of the ECHR. It seems suitable to amend 
the Draft Agreement with an additional article further clarifying the relationship betwe-
en the two articles on the fundamental rights protection standards. Drafting the additi-
onal article would require additional care so that the article would not allow the ECtHR 
to interpret EU law and Article 53 of the Charter in any way. It would also be possible 
for the Member States to sign a binding statement, stating that Article 53 ECHR does 
not provide them with any additional rights, not given to them by the Charter, although 
it is questionable whether that is even necessary.
26
 In case the Member States would agree 
to such a solution, difficult negotiations of amending the Draft Agreement could be 
avoided (at least regarding to this issue).
 27
 The addition should in particular also contain 
the “correct” interpretation of the expression “the laws of any High Contracting Party” 
which includes, inter alia, sincere consideration of the CJEU’s case law.
28
2.1.2. Principle of Mutual T rust between the Member States
The principle of mutual trust between the Member States is another important prin-
ciple, given that it allows an area without internal borders to be created and maintained. 
The principle requires, particularly concerning the area of freedom, security and justi-
ce,
29
 each of the Member States, save in exceptional circumstances, to consider all other 
Member States to be complying with EU law and particularly with the fundamental 
effectiveness of EU law.
25
 Including any international agreement to which the respective Member States is a member.
26
 Article 53 of the ECHR does not empower the ECHR signatory states and does not give them any 
rights they did not have before ratifying the ECHR. It therefore also cannot give the Member States 
rights, which were already limited or “taken away” from them by the CJEU (such as in the Melloni 
case).
27
 Lock proposes an explanation that the provision in question does not provide the signatory states 
with a permission to establish higher standards of human rights protection in a way, which would 
amount to a breach of Article 53 of the Charter and the principle of unity, primacy and effec-
tiveness. For more see: Lock, The Future of EU Accession to the ECHR after Opinion 2/13: Is It 
Still Possible and Is It Still Desirable?, URL: https://papers.ssrn.com/sol3/Papers.cfm?abstract_id= 
2616175, p. 17; Halberstam, “It’s the Autonomy, Stupid!” A Modest Defense of Opinion 2/13 on 
EU Accession to the ECHR, and the Way Forward (2015), p. 123.
28
 Ibid.
29
 The creation and maintenance of this area is an explicit aim of the EU; see Article 3(2) TFEU.

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rights recognised by EU law.
30
 Thus, when implementing EU law, the Member States 
may be required, under EU law, to presume that fundamental rights have been observed 
by other Member States, so that not only may they not demand a higher level of national 
protection of fundamental rights from another Member State than that provided by EU 
law, but, save in exceptional cases, they may not even check whether that other Member 
State has actually, in an individual case, observed the fundamental rights guaranteed 
by the EU. The CJEU believes that the approach adopted in the agreement envisaged, 
which is to treat the EU as a State and to give it a role identical in every respect to that 
of any other Contracting Party, specifically disregards the intrinsic nature of the EU and, 
in particular, fails to take into consideration the fact that the Member States have, by 
reason of their membership of the EU, accepted that relations between them as regards 
the matters covered by the transfer of powers from the Member States to the EU are 
governed by EU law, to the exclusion, if EU law so requires, of any other law. According 
to the CJEU, the ECHR requiring a Member State to check that another Member State 
has observed fundamental rights, even though EU law imposes an obligation of mutual 
trust between those Member States, would, in requiring the EU and the Member States 
to be considered Contracting Parties not only in their relations with Contracting Parties 
which are not Member States of the EU but also in their relations with each other inclu-
ding where such relations are governed by EU law, mean that accession is liable to upset 
the underlying balance of the EU and undermine the autonomy of the EU legal system.
The interesting but relatively strict stance of the CJEU is most likely based on the 
experience with the ECtHR case law.
31
 For example, in the cases No. 14038/88 Soering
32
 
and No. 22414/93 Chahal,
33
 the ECtHR decided that extradition must be prevented 
in situations, where there is a serious threat that a person will not enjoy appropriate 
fundamental rights protection in the other Member States. It confirmed this position in 
the case No. 30969/09 M.S.S. v. Belgium and Greece,
34
 where it decided that a Member 
State breaches Article 3 ECHR if it transfers a person to another Member State in whi-
ch a serious threat of a breach of fundamental rights exists.
35
 The CJEU later decided 
in a similar situation that only systematic deficiencies in the asylum process allow the 
Member States to stop the process of extradition in line with Article 3(2) of the Dublin 
Regulation.
36
 The CJEU basically contradicted the ECtHR and the ECtHR answered 
with the judgments going in the opposite direction than those of the CJEU as one can 
30
 Opinion 2/13, para. 191ff.
31
 The problems arose when dealing with the Regulation No. 604/2013, OJ L 180, 29. 6. 2013.
32
 App. no. 14038/88, Soering v. United Kingdom.
33
 App. no. 22414/93, Chahal v. United Kingdom.
34
 App. no. 30969/09, M.S.S. v. Belgium and Greece.
35
 Ibid., paras. 341–369.
36
 Case C-394/12 Shamso Abdullahli v. Bundesasylamt, ECLI:EU:C:2013:813, para. 60.

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Lina Burkelc Juras, Aleš Ferčič – Opinion 2/13: Game Over or Just Another Pit-Stop?
see for example in the case No. 29217/12 T arakhel v. Switzerland,
37
 where it stated that 
even in the absence of systematic deficiencies in the asylum process, the circumstances of 
each individual case must be taken into account and actions must be taken, if necessa-
ry.
38
 The stated reveals some friction between the courts.
39
 In Opinion 2/13, the CJEU 
already indicates a negative attitude towards the ECtHR position regarding the discussed 
problem
40
 and it will be interesting to examine the ECtHR’s reaction.
41
The area in question, regulated by the Dublin regulation, was the only one, which 
caused trouble for now, but it cannot be predicted whether any difficulty would also 
emerge in other areas.
42
 It, therefore, seems logical for the CJEU to try to protect the 
relationship between the Member States and the EU from the interference of the ECtHR 
since it always tried to preserve the autonomy of EU law.
Some scholars argue that it is surprising that the CJEU is willing to take this protecti-
on so far as to exclude or at least negatively affect the protection of human rights,
43
 or 
that the area of freedom, security and justice is an area in which the EU could gain a lot 
in the sense of legal security of individuals, but obviously the CJEU believes that no one 
should have the jurisdiction, rather than that jurisdiction belongs to the ECtHR only.
44
 
At the end of the day, such criticism is hard to accept. The EU has developed a decent 
37
 App. no. 29217/12, T arakhel v. Switzerland.
38
 Compare further: Eeckhout, Opinion 2/13 on EU Accession to the ECHR and Judicial Dialogue: 
Autonomy or Autarky, URL: http://www.jeanmonnetprogram.org/paper/opinion-213-on-eu-acce 
ssion-to-the-echr-and-judicial-dialogue-autonomy-or-autarky; App. no. 29217/12, Tarakhel v. 
Switzerland, paras. 88, 114–120. 
39
 Some authors observe that the CJEU has, for example, recently been citing the ECtHR less and in 
a more reserved way. See for example: Glas, Kommendijk, From Opinion 2/13 to Avotiņš: Recent 
Developments in the Relationship between the Luxembourg and Strasbourg Court (2017).
40
 Compare: Eeckhout, Opinion 2/13 on EU Accession to the ECHR and Judicial Dialogue: Autonomy 
or Autarky, URL: http://www.jeanmonnetprogram.org/paper/opinion-213-on-eu-accession-to-the 
-echr-and-judicial-dialogue-autonomy-or-autarky.
41
 The ECtHR already got the chance to react in the case Avotiņš v. Latvia (App. no. 17502/07), in 
which it chose to uphold the Bosphorus doctrine. Yet, when closely examining the ECtHR’s judg-
ment, one can see the implicit criticism of Opinion 2/13. The ECtHR clarifies that the autonomy 
of EU law is not unlimited and it seems to apply the Bosphorus doctrine somewhat stricter than 
before Opinion 2/13 in comparison with the handful of judgments in which it dealt with the doc-
trine previously. See: Glas, Kommendijk, From Opinion 2/13 to Avotiņš: Recent Developments in 
the Relationship between the Luxembourg and Strasbourg Court (2017).
42
 For example in the field of cross-border parental child abductions.
43
 Lock even states that the CJEU “is playing a dangerous game here”. Compare: Lock, The Future of 
EU Accession to the ECHR after Opinion 2/13: Is It Still Possible and Is It Still Desirable?, URL: 
https://papers.ssrn.com/sol3/Papers.cfm?abstract_id=2616175.
44
 Compare: Reitmeyer, Pirker, Opinion 2/13 of the CJEU on Access of the EU to the ECHR – One step 
ahead and two steps back, URL: http://europeanlawblog.eu/2015/03/31/opinion-213-of-the-court 
-of-justice-on-access-of-the-eu-to-the-echr-one-step-ahead-and-two-steps-back/.

58
Zbornik znanstvenih razprav – LXXIX. letnik, 2019, Perspektive prava Evropske unije
system of human rights protection, which, in principle, guarantees acceptable level of 
human rights protection (even in the absence of the EU’s accession to the ECHR). It 
seems the CJEU trusts in this system and in it simply follows the logic of the area of 
freedom, security and justice as defined in the TEU and the TFEU (by the Member 
States). Moreover, one of the main features of the discussed area is the abolition of in-
ternal frontiers, similar to the concept of internal market. It seems the CJEU follows the 
same or at least a quite similar approach in the case of the area of freedom, security and 
justice as developed in the case 120/78 Casis de Dijon
45
 for purposes of strengthening the 
internal market.
46
The solution to this issue would have to prevent those cases which could threaten 
the principle of mutual trust between the Member States could land in the hands of the 
ECtHR. Some believe making reservations could be possible, but opinions diverge since 
the reservations would have to be made against multiple ECHR rights and a bunch of 
EU law, which would not make them specific enough.
47
 It is also hard to amend the 
reservations, so they seem an inappropriate solution for the quickly developing area of 
freedom, security and justice.
48
It seems it would be best to add a provision to the Draft Agreement and try to avoid 
breaching EU law by following the wording of the CJEU in Opinion 2/13 as much as 
possible.
49
 The added provision would have to exclude the discussed area from the ju-
risdiction of the ECtHR or include the jurisdiction of the CJEU and more specifically 
determine the extent of the principle of mutual trust between the Member States. Lock 
suggests the following additional provision to the Draft Agreement:
45
 Case 120/78 Rewe-Zentral AG v Bundesmonopolverwaltung für Branntwein, ECLI:EU:C:1979:42 
(Casis de Dijon).
46
 Namely, if a certain product is lawfully produced and marketed in one Member State, it must be, 
in principle, allowed to market it in other Member States. This logic can be also recognised in cases 
dealing with the recognition of legal personality in another Member State; namely, if a certain legal 
person is lawfully established in one Member State, organs of other Member States must recognise 
it as a legal person. Moreover, also in case of the EU citizenship, which depends on citizenship of 
at least one EU Member State, the similar logic applies; namely, if one person gained citizenship of 
one Member State, organs of other Member States must recognise this citizenship and treat such 
person as a citizen of the EU. In all these cases, one can recognise, inter alia, the principle of mutual 
trust between the Member States.
47
 Compare further: Krenn, Autonomy and Effectiveness as Common Concerns: A part to ECHR 
Accession after Opinion 2/13 (2015), pp. 164, 165; Lock, The Future of EU Accession to the 
ECHR after Opinion 2/13: Is It Still Possible and Is It Still Desirable?, URL: https://papers.ssrn.com 
/sol3/Papers.cfm?abstract_id=2616175, p. 20.
48
 Halberstam claims that the problem will solve itself when the co-respondent mechanism is properly 
handled. See: Halberstam, “It’s the Autonomy, Stupid!” A Modest Defense of Opinion 2/13 on EU 
Accession to the ECHR, and the Way Forward (2015), p. 137. Ibid.
49
 Opinion 2/13, paras. 191–194.

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Lina Burkelc Juras, Aleš Ferčič – Opinion 2/13: Game Over or Just Another Pit-Stop?
“Member States of the EU cannot be held responsible under the Convention for fa-
iling to carry out a review of another Member State’s compliance with Convention 
rights.”
50
According to Lock, the ECtHR would not be allowed to judge EU law in these si-
tuations, it would merely have to verify whether the case deals with two Member States. 
However, the weakness of such solution is that this provision also covers cases where 
the situation would not involve EU law at all (e.g. extraditions based on bilateral agre-
ements).
51
 Therefore, the provision mentioned above should have a narrower scope of 
application; namely, it shall not be applicable to cases without the EU dimension.
2.1.3. The Advisory Opinion of the ECtHR
The advisory opinion is defined by Protocol No. 16 to the ECHR. According to 
the latter, the highest courts and tribunals of the High Contracting Parties may ask the 
ECtHR for an advisory opinion on questions of principle relating to the interpretation 
or application of the rights and freedoms defined in the ECHR and protocols thereto.
The CJEU explicitly emphasised a concern that the institute of advisory opinion 
could threaten the autonomy of EU law and the effectiveness of the preliminary question 
proceeding in Article 267 TFEU.
52
 Although the Draft Agreement does not provide for 
the accession of the EU to the Protocol No. 16 and that the latter was signed after the 
Draft Agreement was already finalised, the CJEU correctly described scenarios which 
could lead to the application of the advisory opinion in practice, therefore, we decided 
to analyse this issue as well.
The CJEU is concerned that Member States’ courts would prefer asking for an advi-
sory opinion over referring a preliminary question according to Article 267 of the TFEU. 
According to the CJEU, advisory opinions could therefore also reach into the field of 
fundamental EU rights,
53
 jeopardise the institute of preliminary ruling and affect the 
autonomy of the EU legal system.
In this respect, we believe, the fear is superfluous. Namely, the advisory opinion 
does not bind the national courts,
54
 and the national courts are, in line with Article 
50
 Lock, The Future of EU Accession to the ECHR after Opinion 2/13: Is It Still Possible and Is It 
Still Desirable?, URL: https://papers.ssrn.com/sol3/Papers.cfm?abstract_id=2616175, p. 21.
51
 Ibid., p. 21.
52
 Opinion 2/13, para. 197; Compare further: Gotev , Court of J ustice rejects Draft Agreement of EU acces-
sion to ECHR, URL: http://www.euractiv.com/section/justice-home-affairs/news/court-of-justice 
-rejects-draft-agreement-of-eu-accession-to-echr/.
53
 Opinion 2/13, para. 196ff. Compare: Reitmeyer, Pirker, Opinion 2/13 of the CJEU on Access of the 
EU to the ECHR – One step ahead and two steps back, URL: http://europeanlawblog.eu/2015/03/31/
opinion-213-of-the-court-of-justice-on-access-of-the-eu-to-the-echr-one-step-ahead-and-two 
-steps-back/.
54
 Article 5 Protocol No. 16.

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Zbornik znanstvenih razprav – LXXIX. letnik, 2019, Perspektive prava Evropske unije
267 TFEU, still obliged to refer preliminary questions to the CJEU.
55
 Furthermore, 
it must also be noted that any possible effects would not be a consequence of the EU’s 
accession to the ECHR since the same situation would also arise without the accession
56
 
and the same questions could still find their way to the ECtHR.
57
 Despite the CJEU’s 
opinion, the solution to this issue can actually be found in the T reaties, more precisely in 
Article 267(3) of the TFEU. The obligation to refer a preliminary question enjoys prio-
rity over Protocol No. 16 and sufficiently regulates the issue. Such was also the opinion 
of AG Kokott.
58
 If a national court asks the ECtHR for an advisory opinion when that 
is not necessary, a procedure under Article 258 of the TFEU could be started against the 
Member State for a breach of the T reaties.
59
Nevertheless, the CJEU’s opinion remains a fact. A possible solution for pleasing the 
CJEU might be achieving that the Member States make a binding statement that they 
will not sign and ratify Protocol No. 16. If they were prepared to make such a statement, 
this could theoretically please the CJEU.
60 
The other possible option might be a change 
of the Draft Agreement with an added provision stating that the Member States do not 
have the right to ask for an advisory opinion in cases, in which they (their national courts) 
could or should refer a question for the preliminary question to the CJEU.
61
 However, 
even such a solution could be regarded, considering the stricter version of the concept 
of autonomy of EU law, as seen in Opinion 2/13, a breach of the principle of autonomy 
of EU law, since ECtHR could be given the power to decide whether the conditions are 
fulfilled, and therefore interpret EU law. And last but not least, the ECtHR always has 
the option of denying the request for advisory opinion, but must “give reasons” for doing 
so.
62
 A reason for denying the requests could be a binding unilateral declaration of the 
55
 Compare further: Lock, The Future of EU Accession to the ECHR after Opinion 2/13: Is It Still 
Possible and Is It Still Desirable?, URL: https://papers.ssrn.com/sol3/Papers.cfm?abstract_id= 
2616175, pp. 21, 22.
56
 View of AG Kokott, para. 140.
57
 Ibid., para. 141.
58
 Ibid., para. 140.
59
 Reitmeyer, Pirker, Opinion 2/13 of the CJEU on Access of the EU to the ECHR – One step ahead and 
two steps back, URL: http://europeanlawblog.eu/2015/03/31/opinion-213-of-the-court-of-justice 
-on-access-of-the-eu-to-the-echr-one-step-ahead-and-two-steps-back/.
60
 Compare further: Lock, The Future of EU Accession to the ECHR after Opinion 2/13: Is It Still 
Possible and Is It Still Desirable?, URL: https://papers.ssrn.com/sol3/Papers.cfm?abstract_id= 
2616175, p. 23.
61
 Ibid.
62
 Halberstam “It’s the Autonomy, Stupid!” A Modest Defense of Opinion 2/13 on EU Accession to 
the ECHR, and the Way Forward (2015), pp. 122, 123.

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Lina Burkelc Juras, Aleš Ferčič – Opinion 2/13: Game Over or Just Another Pit-Stop?
Member States to use the preliminary question procedure and not the advisory opinion 
procedure, when necessary.
63
2.2. Dispute Settlement and Article 344 of the TFEU
Dispute settlement between the EU and the Member States as well as between the 
Member States shall follow Article 344 of the TFEU.
64
 According to Article 344 of the 
TFEU the Member States undertake not to submit a dispute concerning the interpre-
tation or application of the Treaties (and of the sources EU law deriving from them or 
based on them) to any method of settlement other than those provided for therein.
65
 At 
the same time, Article 33 ECHR allows for inter-state disputes between the Contracting 
States regarding the breaches of the ECHR (which must be treated as EU law after the 
EU’s accession to it). Since the Draft Agreement does not exclude the option of using 
ECHR for solving the disputes between the Member States or between a Member State 
and the EU, the CJEU pointed out that the mere existence of this possibility breaches 
Article 344 TFEU.
66
 Thus, according to the CJEU, only the express exclusion of the 
ECtHR’s jurisdiction under Article 33 of the ECHR over disputes between the Member 
States or between the Member States and the EU concerning the application of the 
ECHR within the ratione materiae scope of EU law would be compatible with Article 
344 of the TFEU.
67
Such position of the CJEU is relatively strict, and we have to check whether it is 
justified. Some scholars describe the viewpoint of the CJEU as too restrictive for four 
main reasons. First, such a demand would create an exception for the Member States and 
exclude them from dispute resolution in a way that contradicts the established practice of 
international agreements.
68
 It does not give the option of such an exception to the other 
signatory states of the ECHR.
69
 Also, other signatories might contradict such an excepti-
on.
70
 Second, this demand would mean that other agreements, already concluded by the 
EU, could likewise be in contradiction to Article 344 of the TFEU, since they also do 
63
 Compare further: ibid.
64
 Article 3 of Protocol No. 8 states: “Nothing in the agreement referred to in Article 1 shall affect 
Article 344 of the T reaty on the Functioning of the European Union.”
65
 Opinion 2/13, paras. 201–204.
66
 Opinion 2/13, paras. 208, 212.
67
 Ibid., paras. 201, 213. See also: Opinion 1/91, para. 35; Cases C-402/05 P in C-415/05 Kadi, para. 
282; Article 3 Protocol No. 8.
68
 They are called “disconnection clauses”. 
69
 View of AG Kokott, paras. 115, 116.
70
 Compare further: Reitmeyer, Pirker, Opinion 2/13 of the CJEU on Access of the EU to the ECHR – 
One step ahead and two steps back, URL: http://europeanlawblog.eu/2015/03/31/opinion-213-of- 
the-court-of-justice-on-access-of-the-eu-to-the-echr-one-step-ahead-and-two-steps-back/.

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Zbornik znanstvenih razprav – LXXIX. letnik, 2019, Perspektive prava Evropske unije
not include provisions about such exceptions.
71
 Third, in line with Article 351(2) of the 
TFEU the Member States would also have to amend the already concluded international 
agreements that lack such provisions.
72
 Fourth, if the Draft Agreement will have a general 
provision, excluding all the disputes between the Member states and the Member States 
and the EU, it would also be excluding the disputes that have nothing to do with EU 
law.
73
 And last, according to some scholars, it is questionable if this way of protecting the 
autonomy of EU law, in which other signatories would practically have to consent to a 
judicial monopoly of the CJEU, is appropriate.
74
 In this regard, we must also stress the 
fundamental question that is to be put forward—should it not be, in the light of the de-
velopment of EU law and the close connection between EU law and the Member States, 
already clear to the Member States, that they cannot start a dispute against another 
Member State without checking first whether the dispute is connected to EU law?
Thus, it is debatable whether this question should be dealt with in the Draft 
Agreement, since a Member State, initiating such a procedure before the ECtHR, would 
breach EU law, namely Article 4 TEU.
75
 Besides, according to some, the options sug-
gested by AG Kokott could be applied. AG Kokott emphasised the mechanisms under 
Article 344 TFEU as sufficient
76
 and suggested an additional safeguard in the form of a 
binding declaration of the Member States within the ECHR system, stating that they 
71
 View of AG Kokott, para. 117. Halberstam warns, that the fact, that CJEU did not object such 
regulation in other agreements, does not mean it cannot contradict it now. Compare: Halberstam, 
“It’s the Autonomy, Stupid!” A Modest Defense of Opinion 2/13 on EU Accession to the ECHR, 
and the Way Forward (2015).
72
 Reitmeyer and Pirker warn that “as soon as two or more EU Member States – as in the MOX Plant 
case – form parties to an agreement with a dispute settlement mechanism and provisions that over-
lap in substance with EU law, the monopoly of dispute settlement under Article 344 TFEU would 
thus be endangered and the relevant agreement incompatible with the autonomy of EU law”. See: 
Reitmeyer, Pirker, Opinion 2/13 of the CJEU on Access of the EU to the ECHR – One step ahead and 
two steps back, URL: http://europeanlawblog.eu/2015/03/31/opinion-213-of-the-court-of-justice 
-on-access-of-the-eu-to-the-echr-one-step-ahead-and-two-steps-back/.
73
 Perhaps a special mechanism, similar to the prior involvement procedure, could be established, in 
which the CJEU could provide an assessment before the ECtHR continues with the procedure. 
However, this sort of a mechanism could slow down and complicate the proceedings and it could 
also run into the same obstacles as the prior involvement procedure. Compare: Lock, The Future of 
EU Accession to the ECHR after Opinion 2/13: Is It Still Possible and Is It Still Desirable?, URL: 
https://papers.ssrn.com/sol3/Papers.cfm?abstract_id=2616175, pp. 15, 16.
74
 See also: Reitmeyer, Pirker, Opinion 2/13 of the CJEU on Access of the EU to the ECHR – One step 
ahead and two steps back, URL: http://europeanlawblog.eu/2015/03/31/opinion-213-of-the-court 
-of-justice-on-access-of-the-eu-to-the-echr-one-step-ahead-and-two-steps-back/.
75
 Compare: Hojnik, Ročna zavora Sodišča EU pri pristopanju EU k EKČP (2015), pp. 13–14. 
Similar situation occurred in C-459/03 European Commission v. Ireland.
76
 View of AG Kokott, paras. 114–119; Bagchi, EU Accession to the ECHR: In Defense of the ECJ, 
URL: http://jean-monnet-saar.eu/?p=745.

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Lina Burkelc Juras, Aleš Ferčič – Opinion 2/13: Game Over or Just Another Pit-Stop?
will not initiate such a procedure when dealing with the scope rationae materiae of EU 
law.
77
The arguments mentioned above against the CJEU’s position are not entirely con-
vincing and even less so the allegations that the CJEU artificially caused the unpleasant 
situation. First, we believe the Draft Agreement should deal with the discussed issue 
since Article 3 of Protocol No. 8 explicitly demands full respect of Article 344 of the 
TFEU. This could not be achieved simply by relying on the obligation of sincere coope-
ration as defined by Article 4 of the TEU since the daily practice clearly shows numerous 
violations of this obligation.
78
 Moreover, the agreement between the Member States and 
the EU should not be enough either, unless it is binding within the ECHR system and 
leaves no room for the ECtHR jurisdiction. Of course, the latter approach must be agre-
ed between all parties of the ECHR. Thus, the Draft Agreement should most definitely 
cover the issue discussed.
Indeed, the Draft Agreement addresses the issue in its Article 5 stipulating that pro-
ceedings before the CJEU are not to be regarded as a means of dispute settlement which 
the Contracting Parties have agreed to forgo under Article 55 of the ECHR. We agree 
with the CJEU that Article 5 of the Draft Agreement is not sufficient to preserve the 
exclusive jurisdiction of the CJEU. It merely reduces the scope of the obligation laid 
down by Article 55 of the ECHR, but still allows for the possibility that the EU or 
its Member States might submit an application to the ECtHR under Article 33 of the 
ECHR, concerning an alleged violation thereof by a Member State or the EU, respecti-
vely, in conjunction with EU law. Moreover, the proposal of AG Kokott can effectively 
protect Article 344 of the TFEU only if, as already mentioned, it is binding within the 
ECHR system and leaves no room for the ECtHR jurisdiction. We do not accept the 
argument that a provision, excluding all the disputes between the Member States and 
the Member States and the EU, would also exclude the disputes that have nothing to 
do with EU law since the provision can be specific enough to prevent such a situation. 
And, of course, a possibility exists that other contracting parties refuse to accept such 
reservation in favour of the EU, but this risk should not be attributed to the CJEU but 
rather to the Member States which defined accession conditions, such as those in Article 
3 of Protocol No. 8.
77
 View of AG Kokott, para. 120. See also: Reitmeyer, Pirker, Opinion 2/13 of the CJEU on Access of the 
EU to the ECHR – One step ahead and two steps back, URL: http://europeanlawblog.eu/2015/03/31/
opinion-213-of-the-court-of-justice-on-access-of-the-eu-to-the-echr-one-step-ahead-and-two 
-steps-back/.
78
 See for example: C-433/03 Commission v. Germany, ECLI:EU:C:2005:462; C-246/07 Commission 
v. Sweden, ECLI:EU:C:2010:203; C-355/04 Segi and Others v. Council, ECLI:EU:C:2007:116; 
and others.

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Zbornik znanstvenih razprav – LXXIX. letnik, 2019, Perspektive prava Evropske unije
2.3. The Co-respondent Mechanism
The co-respondent mechanism has been introduced to avoid gaps in participation, 
accountability and enforceability in the ECHR system, i.e. the gaps which, owing to the 
specific characteristics of the EU, might result from its accession to the ECHR, and to 
ensure that, under the requirements of Article 1(b) of Protocol No. 8, proceedings by 
non-Member States and individual applications are correctly addressed to the Member 
States and/or the EU as appropriate in each particular case.
79
 This way the drafters tried 
to preserve the specific characteristics of EU law, as required by Article 1 of Protocol No. 
8. Yet, the CJEU found several shortcomings of the proposed co-respondent mechanism, 
which are discussed below.
First, according to the Draft Agreement—more precisely its Article 3(5)
80
—a 
Contracting Party is to become a co-respondent either by accepting an invitation from 
the ECtHR or by a decision of the ECtHR upon the request of that Contracting Party. 
In this regard, the CJEU correctly stressed that the material conditions for applying the 
co-respondent mechanism result, in essence, from the rules of EU law concerning the 
division of powers between the EU and its Member States and the criteria governing 
the attributability of an act or omission that may constitute a violation of the ECHR. 
Therefore, the decision as to whether those conditions are met in a concrete case necessa-
rily presupposes an assessment of EU law. Furthermore, the CJEU demands that the EU 
and its Member States must remain free to assess whether the material conditions for 
applying the co-respondent mechanism are met, which is not the case when the ECtHR 
makes a decision regarding the status of the co-respondent based on the Contracting 
Party request. Essentially, the CJEU demands that the ECtHR should not have a possi-
bility to interfere with the division of powers between the EU and the Member States 
since that can be considered an internal matter.
81
 Again, this demand can be explained as 
a direct consequence of Article 1(b) of Protocol No. 8.
82
79
 See Opinion 2/13, paras. 215, 216.
80
 Article 3(5) of the Draft Agreement states: “A High Contracting Party shall become a co-respon-
dent either by accepting an invitation from the Court or by decision of the Court upon the request 
of that High Contracting Party. When inviting a High Contracting Party to become co-respondent, 
and when deciding upon a request to that effect, the Court shall seek the views of all parties to the 
proceedings. When deciding upon such a request, the Court shall assess whether, in the light of 
the reasons given by the High Contracting Party concerned, it is plausible that the conditions in 
paragraph 2 or paragraph 3 of this article are met.”
81
 Article 3(5) of the Draft Agreement should be modified; agreement envisaged should for example 
contain an explicit demand for the ECtHR to give the EU or a Member State the status of the 
co-respondent on their request, as that would mean that the ECtHR would not make any “EU law 
based” decision.
82
 Article 1 of Protocol No. 8 states: “The agreement relating to the accession of the Union to the 
European Convention on the Protection of Human Rights and Fundamental Freedoms (hereinaf-

65
Lina Burkelc Juras, Aleš Ferčič – Opinion 2/13: Game Over or Just Another Pit-Stop?
Second, the CJEU (as well as AG Kokott) also identified another shortcoming of 
the Draft Agreement—its Article 3(7).
83
 According to the CJEU, the provision in qu-
estion (nor any other provision of the Draft Agreement) does not (effectively) preclude 
a Member State from being held responsible, together with the EU, for the violation 
of a provision of the ECHR in respect of which that Member State may have made a 
reservation in accordance with Article 57 of the ECHR.
84
 On the one hand, Article 3(7) 
of the Draft Agreement provides that if the violation in respect of which a Contracting 
Party is a co-respondent to the proceedings is established, the respondent and the co-
-respondent are to be jointly responsible for that violation, while on the other hand, 
Article 2 of Protocol No. 8 demands that nothing in the agreement envisaged affects the 
situation of the Member States in relation to the ECHR, in particular in relation to the 
Protocols thereto, measures taken by the Member States derogating from the ECHR in 
accordance with its Article 15 and reservations to the ECHR made by the Member States 
under Article 57 thereof.
85
 As already indicated, the CJEU found some divergence in the 
discussed provisions.
And third, Article 3(7) of the Draft Agreement defines an exception to the general 
rule that the respondent and co-respondent are to be jointly responsible for a violation 
established. According to the provision in question, the ECtHR may decide, based on 
the reasons given by the respondent and the co-respondent, and having sought the views 
of the applicant, that only one of them is to be held responsible for that violation. In this 
regard, the CJEU correctly pointed out that a decision on the apportionment as between 
the EU and its Member States of responsibility for an act or omission constituting a vio-
ter referred to as the ‘European Convention’) provided for in Article 6(2) of the T reaty on European 
Union shall make provision for preserving the specific characteristics of the Union and Union law, 
in particular with regard to:
 (a) the specific arrangements for the Union’s possible participation in the control bodies of the 
European Convention;
 (b) the mechanisms necessary to ensure that proceedings by non-Member States and individual 
applications are correctly addressed to Member States and/or the Union as appropriate.”
83
 Article 3(7) of the Draft Agreement states: “If the violation in respect of which a High Contracting 
Party is a co-respondent to the proceedings is established, the respondent and the co-respondent 
shall be jointly responsible for that violation, unless the Court, on the basis of the reasons given by 
the respondent and the co- respondent, and having sought the views of the applicant, decides that 
only one of them be held responsible.”
84
 Opinion 2/13, para. 227; Compare: Lock, The Future of EU Accession to the ECHR after Opinion 
2/13: Is It Still Possible and Is It Still Desirable?, URL: https://papers.ssrn.com/sol3/Papers.cfm?ab-
stract_id=2616175, pp. 10, 11. 
85
 View of AG Kokott, para. 265; Opinion 2/13, paras. 226-228; see also: Reitmeyer, Pirker, Opinion 
2/13 of the CJEU on Access of the EU to the ECHR – One step ahead and two steps back, URL: http://
europeanlawblog.eu/2015/03/31/opinion-213-of-the-court-of-justice-on-access-of-the-eu-to-the 
-echr-one-step-ahead-and-two-steps-back/.

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Zbornik znanstvenih razprav – LXXIX. letnik, 2019, Perspektive prava Evropske unije
lation of the ECHR established by the ECtHR is also one that is based on an assessment 
of the rules of EU law governing the division of powers between the EU and its Member 
States and the attributability of that act or omission. Accordingly, to permit the ECtHR 
to adopt such a decision would also risk adversely affecting the division of powers betwe-
en the EU and its Member States. In this regard, the same reasoning can be applied as 
those related to the first point of this subsection.
Some scholars argue that the position of the CJEU and its reasoning is unconvincing 
due to at least two points. Firstly, the EU can become a co-respondent in the proceedin-
gs, where a Member State is obviously already involved in the proceeding as the respon-
dent. The Member State would not be involved if it made a reservation. And secondly, 
the ECtHR can check who becomes the co-respondent in a proceeding. They believe, 
that it is highly unlikely that the ECtHR will invite a Member State that made a reserva-
tion to specific ECHR provision to become a co-respondent in a case which deals with 
this provision and is wondering why the CJEU found this so problematic.
86
 They admit 
that the Draft Agreement remains silent on the issue, but they think it would be more 
appropriate merely to assume that the general ECHR rules apply and the reservations 
will be taken into account.
87
Notwithstanding that opinion, Lock proposes, that one option for resolving this cou-
ld be “an interpretative declaration to the effect that reservations made by the Member 
States of the EU must be respected.” Additionally, the Member States could make a state-
ment that they will never request the ECtHR to decide on the division of responsibility. 
However, such a decision would not express verbis exclude the option of the ECtHR to 
decide on the division.
88
 In this context, it is appropriate to emphasise a proposal made 
by Halberstam—that the ECtHR should be deprived of the power to second-guess the 
EU’s view regarding the division of responsibility.
89
 Although this solution seems to be 
following the requirements of the autonomy of EU law, it would, as was already pointed 
out by Lock, contradict the ECHR system as a whole since it could deprive the plaintiff 
86
 Lock is of the opinion that “instead of assuming that the Member State would be responsible despite 
its reservation, it would have been more convincing to hold that where the DAA is silent, the stan-
dard rules of the ECHR would be applied, which means that the reservation would be given effect.” 
Compare further: Reitmeyer, Pirker, ibid.; Lock, The Future of EU Accession to the ECHR after 
Opinion 2/13: Is It Still Possible and Is It Still Desirable?, URL: https://papers.ssrn.com/sol3/Papers 
.cfm?abstract_id=2616175, p. 10, 11.
87
 Lock, ibid., p. 11.
88
 Ibid., p. 10.
89
 Or as Halberstam puts it: “eliminating the ECtHR’s power to second guess EU’s bid to become 
a co-respondent and the EU’s view on joint versus sole responsibility.” See: Halberstam, “It’s the 
Autonomy, Stupid!” A Modest Defense of Opinion 2/13 on EU Accession to the ECHR, and the 
Way Forward (2015), p. 137.

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Lina Burkelc Juras, Aleš Ferčič – Opinion 2/13: Game Over or Just Another Pit-Stop?
of the possibility of the respondent being found accountable for the breach.
90
 At the 
end of the day, all these views, however, indicate that some improvements of the Draft 
Agreement would be necessary or at least highly welcome.
For us, the CJEU’s position and its argumentation seem to be more convincing than 
the arguments of its opponents. The former would like to eliminate all risks and uncerta-
inties while the latter appears to be more “relaxed”. Considering what is at stake we opt 
for the CJEU’s stricter approach. Moreover, having in mind all the specific circumstan-
ces (including the division of powers between the EU and its Member States and their 
legal ties) we believe that Article 3(7) of the Draft Agreement envisaged which explicitly 
introduces joint responsibility would be capable, in case it would become effective, to 
overrule the reservations made by the Member States.
91
 Last but not least, it also seems 
that the drafters of Protocol No. 8 in the name of the Member States wanted to avoid 
legal uncertainty. T o make things clear we propose that the accession agreement contains 
a special provision following the wording of Protocol No. 8 by removing the criticised 
part of Article 3(7) that provides the ECtHR with the problematic power. If the negoti-
ators deem it necessary, it would also be possible to change the article to ensure that re-
servations of the Member States are respected.
92
 The provision could contain a safeguard 
that could effectively prevent errors in this field, which is in our opinion only possible 
if the CJEU retains full and sole jurisdiction to assess whether the material conditions 
for applying the co-respondent mechanism are met. In other words, all other “solutions” 
where the CJEU cannot perform such control are not in line with the express demand 
in the provision mentioned above as defined by the Member States. However, it is our 
position that such an addition to the provision is not necessary.
90
 See: Lock, The Future of EU Accession to the ECHR after Opinion 2/13: Is It Still Possible and Is 
It Still Desirable?, URL: https://papers.ssrn.com/sol3/Papers.cfm?abstract_id=2616175, p. 10.
91
 At least theoretically. Of course, this would not be in line with the Protocol (No 8) relating to 
Article 6(2) of the Treaty on European Union on the accession of the Union to the European 
Convention on the Protection of Human Rights and Fundamental Freedoms, OJ C 326, 26. 10. 
2012, p. 273. Article 2 of the discussed protocol explicitly demands that the accession agreement 
shall ensure that nothing therein affects the situation of Member States in relation to the ECHR, 
in particular in relation to the Protocols thereto, measures taken by Member States derogating 
from the ECHR in accordance with Article 15 thereof and reservations to the ECHR made by the 
Member States in accordance with Article 57 thereof.
92
 Compare further: Lock, The Future of EU Accession to the ECHR after Opinion 2/13: Is It Still 
Possible and Is It Still Desirable?, URL: https://papers.ssrn.com/sol3/Papers.cfm?abstract_id= 
2616175, p. 11. 

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2.4. Procedure for the Prior Involvement of the CJEU
The procedure for the prior involvement of the CJEU is defined in Article 3(6) of the 
Draft Agreement,
93
 but according to the CJEU it does not satisfy the requirement set in 
Article 2 of Protocol No. 8
94
 since in cases brought before the ECtHR in which EU law 
is at issue, the requirement that the competences of the EU and the powers of its insti-
tutions, notably the CJEU, shall be preserved, is not followed. With other words, the 
CJEU underlined that Article 3(6) of the Draft Agreement does not exclude the power of 
the ECtHR to interpret the so-called acquis communautaire, including also the case law 
of the CJEU. Consequently, the CJEU suggests that the prior involvement procedure 
should be set up in such a way as to ensure that, in any case pending before the ECtHR, 
the EU is fully and systematically informed, so that the competent EU institution is able 
to assess whether the CJEU has already given a ruling on the question at issue in that case 
and, if it has not, to arrange for the prior involvement procedure to be initiated.
Some scholars describe the CJEU’s position as an exaggeration since the consequences 
of the matter seem to be purely procedural;
95
 Article 3(6) of the Draft Agreement merely 
binds the ECtHR to give the CJEU sufficient time to determine whether an individual 
EU law provision is (not) compatible with fundamental rights, under the condition that 
the CJEU has not previously ruled on the issue. They argue that the Draft Agreement 
does not give the ECtHR any other powers, only the power of a brief overlook of the 
national proceeding (to see if the CJEU was already involved) and in case the CJEU was 
already involved and a preliminary question was referred to it, whether it decided on 
the question relevant in a particular case. Moreover, some argue the argumentation of 
the CJEU would be much more convincing if it also took into consideration the view 
93
 Article 3(6) of the Draft Agreement states: “In proceedings to which the European Union is a co-re-
spondent, if the Court of Justice of the European Union has not yet assessed the compatibility with 
the rights at issue defined in the Convention or in the protocols to which the European Union has 
acceded of the provision of European Union law as under paragraph 2 of this article, sufficient time 
shall be afforded for the Court of Justice of the European Union to make such an assessment, and 
thereafter for the parties to make observations to the Court. The European Union shall ensure that 
such assessment is made quickly so that the proceedings before the Court are not unduly delayed. 
The provisions of this paragraph shall not affect the powers of the Court.”
94
 Article 2 of Protocol No. 8 states: “The agreement referred to in Article 1 shall ensure that accession 
of the Union shall not affect the competences of the Union or the powers of its institutions. It 
shall ensure that nothing therein affects the situation of Member States in relation to the European 
Convention, in particular in relation to the Protocols thereto, measures taken by Member States 
derogating from the European Convention in accordance with Article 15 thereof and reservations 
to the European Convention made by Member States in accordance with Article 57 thereof.”
95
 Compare further: Lock, The Future of EU Accession to the ECHR after Opinion 2/13: Is It Still 
Possible and Is It Still Desirable?, URL: https://papers.ssrn.com/sol3/Papers.cfm?abstract_id= 
2616175, pp. 12, 13.

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Lina Burkelc Juras, Aleš Ferčič – Opinion 2/13: Game Over or Just Another Pit-Stop?
of AG Kokott in regards to the rights of defence in connection to the co-respondent 
mechanism.
96
 In addition to the presented arguments, we would also like to point to a 
fundamental concern—the evident distrust the CJEU showed towards national courts. 
Are they really not to be trusted to follow the appropriate proceedings?
We agree with the CJEU and its expressed doubts in Article 3(6) of the Draft 
Agreement. However, we do not necessarily share the same opinion of how to solve the 
problem in question. Halberstam, for example, who shares a similar view, stressed an 
interesting proposal not to include anything in the Draft Agreement about the prior 
involvement of the CJEU.
97
 Such an approach can cause legal uncertainty, and it does 
not strictly follow the requirement as defined in Article 2 of Protocol No. 8. As we alre-
ady emphasised, the CJEU just followed the express requirement made by the Member 
States. Even if we accept the position mentioned above that the discussed provision 
has merely procedural effects or that the problem is artificial only, since the question of 
prior involvement of the CJEU only arises when the EU already decided to become a 
co-respondent in the procedure (the EU is therefore already notified about the case and 
could suggest the prior involvement procedure if so necessary), such arguments cannot 
outweigh the express requirement and risk of its breach. Moreover, if the CJEU’s pro-
posal regarding the prior involvement is really only a cosmetic one, it should not be too 
difficult to include it in the agreement envisaged. Thus, to avoid any adverse effect on 
the competences of the EU and its institutions, including the CJEU, the ECtHR should 
be merely empowered to use EU law, including the case law of the CJEU, as an objective 
fact, that is to say, it should not have the right to interpret any provision of primary as 
well as secondary source of EU law, which is open to more than one plausible interpreta-
tion. In case such position is accepted, surely several technical solutions of how to amend 
Article 3(6) of the Draft Agreement can be thought of.
2.5. Judicial Review in the CFSP Matters
The judicial review in the CFSP matters seems to be a challenging issue. In many 
ways, also after the Lisbon Treaty, the CFSP is different from other EU policies (for 
example, in terms of the role of the EU institutions, decision making, specific proced-
ures, non-application of some legal acts as well of certain fundamental principles, etc.). 
The CFSP combines supranational and international (intergovernmental) elements. In 
this vein, the CJEU has only limited powers in the field of the CFSP (which can be 
explained as the Member States’ measure for prevention of the so-called judicial activism 
in favour of the (more) supranational character of the CFSP) and it is not entirely cle-
96
 View of AG Kokott, paras. 222–228.
97
 Compare: Halberstam, “It’s the Autonomy, Stupid!” A Modest Defense of Opinion 2/13 on EU 
Accession to the ECHR, and the Way Forward (2015), pp. 116, 117.

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ar—despite the fact that the CJEU has already had the opportunity to define the extent 
to which its jurisdiction is limited in CFSP matters as a result of those provisions
98
—if 
the scope of the CJEU’s judicial review in this field is sufficiently broad to encompass 
any situation that could be covered by an application to the ECtHR. In this regard, the 
CJEU stressed that the Draft Agreement enables the ECtHR to rule on the compatibi-
lity with the ECHR of some acts, actions or omissions performed in the context of the 
CFSP , and notably of those whose legality the CJEU cannot, for lack of jurisdiction, re-
view in the light of fundamental rights. Such a situation would, according to the CJEU, 
effectively entrust the judicial review of those acts, actions or omissions on the part of 
the EU exclusively to a non-EU body, albeit that any such review would be limited to 
compliance with the rights guaranteed by the ECHR.
99
 Therefore, the CJEU decided 
that the agreement envisaged fails to have regard to the specific characteristics of EU law 
with regard to the judicial review of acts, actions or omissions on the part of the EU in 
CFSP matters.
In our opinion, the CJEU is right and wrong depending on the formal(istic) or 
substantive approach, also considering its stance from the Rosneft case. From the formal 
perspective, the CJEU is the highest judicial authority in cases when EU law is concer-
ned and, of course, after the accession, the ECtHR shall also be treated as an integral 
part of EU law. The CJEU’s acts are binding for other institutions of the EU as well as 
for the Member States (and their organs). However, this is not to say that the CJEU is 
rigidly bound by its past case law, in our case by Opinion 1/09, because we think the cir-
cumstances of the case, on which Opinion 1/09 is related, are not the same as in our case 
or comparable enough for a kind of “template” decision making. Moreover, the CJEU 
has only limited powers in the field of CFSP . Thus, when looking at the whole picture, 
98
 Pursuant to the second subparagraph of Article 24(1) TEU and Article 275(1) TFEU, the CJEU 
cannot, in principle, adjudicate with respect to acts adopted in the context of the CFSP . This is a so-
called “carve-out” derogating from the general jurisdiction which Article 19 TEU. However, the last 
sentence Article 24(1)(2) TEU and Article 275(2) TFEU include an “exception to the exception”. 
They provide the CJEU as competent to monitor compliance with Article 40 TEU and to review 
the legality of decisions providing for restrictive measures against natural or legal persons adopted 
by the Council on the basis of the CFSP provisions in the TEU. This is a so-called “claw-back” 
provision. This provision implies that the Lisbon Treaty has given the CJEU significant powers in 
the field of CFSP . In line with the stated provisions, the CJEU ruled that the EU system of judicial 
protection fully applies in relation to restrictive measures against natural and legal persons in the 
case C-72/15 Rosneft (ECLI:EU:C:2017:236).The CJEU’s judgment in the Rosneft case confirms 
that the CFSP is an integral part of the EU legal order and, as a result, the EU’s horizontal principles 
such as respect for the rule of law and the right to effective judicial protection apply to this specific 
area of EU law. For more see: Van Elsuwege, Judicial Review of the EU’s Common Foreign and 
Security Policy: Lessons from the Rosneft case, URL: https://verfassungsblog.de/judicial-review-of-
the-eus-common-foreign-and-security-policy-lessons-from-the-rosneft-case/.
99
 The CJEU already decided in the Opinion 1/09 that such approach is not acceptable.

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in relation to the judicial control in the field of CFSP , the CJEU could decide differently, 
even more after it admitted that the ECtHR would be “merely” empowered to rule on 
the compatibility with the ECHR of certain acts, actions or omissions performed in the 
context of the CFSP (and notably of those whose legality the CJEU cannot, for lack of 
jurisdiction, review in the light of fundamental rights). It seems the CJEU somehow 
equated the judicial control of the ECtHR with its own, if it had one. As we already 
pointed out, the CJEU noticed that the Draft Agreement proposes that the ECtHR’s 
judicial control would be limited to the control of the ECHR rights, but it appears the 
CJEU did not consider this fact as particularly important.
100
 Yet, we believe it is since the 
ECtHR would not interpret the ECtHR as a part of EU law (neither if would interpret 
other sources of EU law) but simply as the international convention and a source of 
classical international law from which it draws jurisdiction. Thus, the CJEU disregarded 
that the control of the ECtHR is not based on EU law per se, but on the ECHR, and also 
ignored that the fact that ECHR would become a part of EU law does not change that. 
AG Kokott is also of the opinion that no conflict with the autonomy of EU law is present 
here and that the situation does not affect the special nature of the EU legal order.
101
 She 
assesses that the lack of mechanisms inside the EU cannot be a reason to contradict the 
jurisdiction of an international court.
102
 Besides, the CJEU ignores the fact that the EU’s 
accession to the ECHR would give the ECtHR the power to check the compatibility of 
primary EU law with the T reaties anyway. Therefore, some scholars emphasised that such 
jurisdiction might result in an asymmetry between the control exercised by the CJEU 
and the ECtHR.
103
Moreover, some scholars have stressed yet another reason for incompatibility of the 
Draft Agreement, which was not expressly stated in Opinion 2/13—apparently, the roles 
of national courts in the field of CFSP matters could be neglected.
104
 The Lisbon T reaty 
obliges the Member States to ensure sufficient legal remedies in the field of EU law. The 
field of CFSP matters is also a part of EU law, and national courts have certain powers 
100
 Opinion 2/13, para. 255.
101
 View of AG Kokott, para. 192.
102
 Ibid., para. 193.
103
 Compare: Lock, End of an Epic? The Draft Agreement on the EU’s Accession to the ECHR (2012); 
Lock, The Future of EU Accession to the ECHR after Opinion 2/13: Is It Still Possible and Is It Still 
Desirable?, URL: https://papers.ssrn.com/sol3/Papers.cfm?abstract_id=2616175, p. 24; Jacqué, The 
accession of the European Union to the European Convention on Human Rights and Fundamental 
Freedoms (2015); Shleina, Opinion 2/13: Some Further Reflections, URL: https://blogs.kcl.ac.uk/ 
kslreuropeanlawblog/?p=966#.XGqmCK3MyRs.
104
 See: Eeckhout, Opinion 2/13 on EU Accession to the ECHR and J udicial Dialogue: Autonomy or Autarky , 
URL: http://www.jeanmonnetprogram.org/paper/opinion-213-on-eu-accession-to-the-echr-and- 
judicial-dialogue-autonomy-or-autarky.

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in this regard even in the absence of any powers of the CJEU.
105
 The CJEU expressly 
stated in Opinion 1/09 that the structure of the EU legal system is based not only on the 
CJEU but also other national courts of the Member States.
106
 That is why the CJEU’s 
stance from Opinion 2/13 appears quite surprising. This intergovernmental character is a 
feature of the CFSP and all the Member States, or at least a number of them, were quite 
keen to keep the CJEU out of this area of policy-making, for fear of the CJEU’s integra-
tionists tendencies.
107
 In light of the stated, it is also possible that the position in which 
the national courts have jurisdiction, and the CJEU does not, was created intentionally 
and the EU’s accession should not be prevented because of that.
108
Yet, the CJEU is the highest judicial authority for the interpretation and applicati-
on of EU law, and it certainly has the power to “put on hold” the process of the EU’s 
accession to the ECHR; one simply cannot ignore Opinion 2/13.
109
 Finding a solution 
to this issue is significant, but of course, also in this case one can think of several more or 
less realistic solutions. One of the suggestions offers a possibility of complete exclusion 
of the ECtHR’s jurisdiction, but this suggestion depends on the acceptance of the other 
side. Another possible solution is a variation of the prior involvement procedure, but a 
provision providing such a procedure would be hard to form and would also need to take 
account of the fact that most of the complaints against the Member States do not always 
comprise of the elements of EU law.
110
 It would have to prevent that the ECtHR gets 
any power of deciding EU law since that would probably yet again present a breach of 
the autonomy of EU law as interpreted by the CJEU. There is also an option of the EU 
making a reservation to the ECHR regarding the CFSP matters and the area of freedom, 
security and rights. However, this option would not be in line with Article 6(2) TEU, 
which foresees the EU’s accession to the ECHR in all fields.
111
 In line with Article 2(1) of 
the Draft Agreement and Article 57(1) of the ECHR, the signatories have the option of 
making reservations. However, the reservations must be formed narrowly and as specific 
as possible, so it is questionable whether such a reservation from the EU would even be 
105
 View of AG Kokott, paras. 96–100.
106
 Opinion 1/09, para. 83. The CJEU also uses the Opinion 1/09 as a reference in Opinion 2/13, 
para. 256.
107
 Compare further: Eeckhout, Opinion 2/13 on EU Accession to the ECHR and Judicial Dialogue: 
Autonomy or Autarky, URL: http://www.jeanmonnetprogram.org/paper/opinion-213-on-eu-ac-
cession-to-the-echr-and-judicial-dialogue-autonomy-or-autarky.
108
 View of AG Kokott, paras. 101–103. 
109
 Article 218(11) TFEU.
110
 Ibid.
111
 Compare: Morano-Foadi, Andreadakis, Brieskova, Higgins, The EU Accession to the ECHR after 
Opinion 2/13: Reflections, Solutions and the Way Forward, URL: http://www.europarl.europa.eu/
cmsdata/104503/EP%20Hearing%20Contribution%20MoranoFoadi%20Andreadakis%20April 
%202016.pdf pp. 35, 36.

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permitted.
112
 A more radical option that might seem improbable at first sight could be a 
change of the primary EU law—the Treaties (more powers for the CJEU in the field of 
CFSP) or Protocol No. 8 (e.g. an explicit provision stating among special characteristics 
of the EU and its law, which has to be protected, there is no need to protect the CJEU’s 
role in the field of CFSP).
113
 This option, however, surprisingly seems to become more 
and more realistic since it is highly likely that the Lisbon T reaty will be amended or super-
seded by another T reaty capable of dealing with present and future challenges of the EU.
3. A Day After; What Next?
Opinion 2/13 is a fact we have to deal with in one way or the other. However, be-
fore we discuss some possible scenarios regarding the EU’s accession to the ECHR, we 
would like to stress that in our opinion, the accession duty as defined in Article 6(2) of 
the TEU did not cease to exist. There is nothing neither in Article 6(2) of the TEU nor 
in Protocol No. 8 suggesting the cessation of the discussed duty, and the same goes for 
Article 218(11) of the TFEU which merely states that where the opinion of the CJEU 
is adverse, the agreement envisaged may not enter into force unless it is amended or the 
T reaties are revised. Hence, the game, i.e. EU’s accession to the ECHR, is definitely not 
over (yet), the show must go on, and Opinion 2/13 only presents a pit stop on the road 
to the EU’s challenging accession.
We, therefore, conclude that all calls or initiatives for the termination of the accession 
procedure must be rejected.
114
 Even if the termination in question would be an option, 
we believe it would still be worthy of continuing with the accession process. Mainly 
because of the improved protection of individuals since they could also submit appli-
cations before the ECtHR against the acts of the EU institutions. The accession would 
112
 The ECtHR explained in para. 207 of the case Grande Stevens and others v. Italy (app. no. 18640/10, 
18647/10, 18663/10, 18668/10): a reservation can only be valid it it is expressed at the time of the 
signature of the ECHR, is not of general nature and contains a short explanation.
113
 Compare: Lazowski, Wessel, When Caveats Turn into Locks: Opinion 2/13 on Accession of the 
European Union to the ECHR (2015), pp. 2, 3.
114
 Some scholars believe that it would not make any sense to proceed with the negotiation and the 
accession procedure, since an accession under the CJEU’s conditions would not enable an effective 
external control of EU activity in connection to the fundamental rights. Similarly, some are of the 
opinion, that those, who would still support the accession, “do not even like human rights”. Peers 
describes Opinion 2/13 as a “clear danger to the human rights protection”, while Douglas-Scott 
agrees.
 
See: Peers, The CJEU and the EU’s accession to the ECHR: a clear and present danger to hu-
man rights protection, URL: http://eulawanalysis.blogspot.si/2014/12/the-cjeu-and-eus-accession-
to-echr.html; Douglas-Scott, Opinion 2/13 on EU accession to the ECHR: a Christmas bombshell 
from the CJEU, URL: http://verfassungsblog.de/opinion-213-eu-accession-echr-christmas-bomb 
shell-european-court-justice-2/.

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also contribute to achieving the great goal of creating a common international space of 
fundamental rights protection in Europe, in which all the key players, including the EU, 
would be obliged to respect the minimum standards from the ECHR, subject to the 
direct control of the ECtHR.
115
 The EU’s accession to the ECHR would most probably 
also assist in unifying the case law of the CJEU and the ECtHR. Additionally, since some 
friction between the courts already exists, a unification seems urgent and could also help 
clarify the state of play after the Bosphorus case. On a more symbolic level, the EU legal 
acts for the protection of fundamental rights being reviewed by external control would 
undoubtedly increase the legitimacy of the EU acts. A formal connection of the EU 
and the ECHR would demonstrate the EU’s concern for the protection of fundamental 
rights and would show the EU as a better guardian of human rights and present the 
ECHR as a cultural and political heritage of the EU. Lastly, the accession could also an-
swer the critiques of double standards of the EU, which demanded that all the Member 
States ratify the ECHR and failed to do the same.
116
 It is true that Opinion 2/13 renders 
the accession more difficult and prolongs the whole process. However, the Treaties do 
not define any deadline in this regard and negotiations or/and other accession activities 
can last for years. In fact, this is very realistic scenario having in mind the complexity of 
the discussed issues and their delicate effects. Perhaps such a prolongation was even wel-
come, and it gives the EU more time to develop its internal mechanism for fundamental 
rights protection, particularly the ones, based on the Charter.
As we explained in section 2 of this article, the CJEU identified seven shortcomings 
of the Draft Agreement in Opinion 2/13. Although the CJEU was intensively criticised 
because of the content of Opinion 2/13, we do not share this predominant view. In our 
opinion, the criticism is exaggerated and unfounded in most cases. In fact, as explained 
above, we (at least partly) agree with five of the seven shortcomings as identified by the 
CJEU. Therefore, the draft Agreement should be amended, or other solutions should 
be provided, as discussed in section 2 of this article. We believe the negotiations for the 
115
 As far as the EU in concerned, it is appropriate to point out once again that according to Article 
6(3) TEU, fundamental rights, as guaranteed by the ECHR and as they result from the constitu-
tional traditions common to the Member States, constitute general principles of EU law. Thus, all 
EU institutions, including the CJEU, are already obliged to respect ECHR although EU is not a 
contracting party of the ECHR, however, at the moment there is no body that could legally review 
the CJEU’s application of the ECHR.
116
 For more see the opinions of some other authors, dealing with the accession issue: Gragl, A giant leap 
for European human rights? The final agreement on the European Union’s accession to the European 
Convention on human rights (2014); Shleina, Opinion 2/13: Some Further Reflections, URL: 
https://blogs.kcl.ac.uk/kslreuropeanlawblog/?p=966#.XGqmCK3MyRs; T ulkens, EU Accession to 
the European Convention on Human Rights URL: http://www.ejtn.eu/Documents/About%20
EJTN/Independent%20Seminars/Human%20Rights%20and%20Access%20to%20Justice%20 
Seminar/Krakow_T ulkens_final.pdf, p. 8; and others.

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modification of the envisaged agreement can be successful at least concerning some of 
the identified shortcomings. Yet, where this would not be the case, we must stress that 
the fault should not be attributed (only) to the CJEU. We have to keep in mind that 
the Member States did not merely lay down the duty of accession to the ECHR, but 
they also linked this duty to several accession conditions, which the CJEU simply had 
to take into account. Furthermore, the Member States can always remove or cancel the 
accession conditions by modifying the T reaties. This way they can “jump over” Opinion 
2/13. After all, if all of them reach a consensus, they are the true master of the Treaties. 
Quite the opposite, the CJEU cannot modify the Treaties and shall not question them, 
similar to a mathematician who shall not challenge the axioms and a priest who shall not 
question the dogmas. We do not blame them, so why blame the CJEU?
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Lina Burkelc Juras, Aleš Ferčič – Opinion 2/13: Game Over or Just Another Pit-Stop?
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Zbornik znanstvenih razprav – LXXIX. letnik, 2019, Perspektive prava Evropske unije
UDK: 342.7:347:061.1EU
Zbornik znanstvenih razprav 
LXXIX. letnik, 2019, Perspektive prava Evropske unije, strani 49–77
Lina Burkelc Juras
Aleš Ferčič
Mnenje 2/13: konec ali le nov postanek?
V kontroverznem Mnenju 2/13 je Sodišče EU zavzelo jasno in nedvoumno stališče – 
osnutek sporazuma o pristopu Evropske unije (EU) k Evropski konvenciji o človekovih 
pravicah (EKČP) ni združljiv z drugim odstavkom 6. člena Pogodbe o EU oziroma s 
Protokolom št. 8 k EKČP . Zato načrtovani sporazum ne more začeti veljati, razen če je 
ustrezno spremenjen ali sta spremenjeni Pogodbi. Mnenje 2/13 je sicer precejšen izziv na 
poti pridružitve EU k EKČP , vendar v nobenem primeru ne odpravlja in tudi ne one-
mogoča pridružitvene obveznosti. Zato bo treba najti pot, ki bo vodila k pridružitvi, kar 
najbrž ne bo preprosto, je pa izvedljivo. Če se bo postopek pridruževanja udejanjal v stro-
kovnih okvirih, s strokovnimi argumenti, ter ne bo prevladalo politikantstvo, meniva, da 
bodo mogoče nekatere spremembe pridružitvenega sporazuma v smeri, kot je nakazalo 
Sodišče EU. Če in kolikor pa do tega ne bo prišlo, to ne bi smelo biti pripisano (zgolj) 
Sodišču Evropske unije. Ne pozabimo, da države članice v Pogodbah niso le določile 
obveznosti pridružitve EU k EKČP , temveč so na to pridružitev vezale določene pogoje, 
ki jih je Sodišče EU preprosto moralo upoštevati. Prav tako je treba opozoriti, da imajo 
države članice, če dosežejo konsenz, kot »gospodarice Pogodb« zmeraj možnost Pogodbi 
ustrezno spremeniti (kar je zdaj, ko je bolj ali manj jasno, da je revizija Lizbonske pogod-
ba nujna, še bolj realno, kot je bilo v času izdaje Mnenja 2/13). Na drugi strani Sodišče 
EU možnosti revizije Lizbonske pogodbe seveda nima, temveč mora Pogodbi sprejeti kot 
objektivno danost.
Ključne besede: Mnenje 2/13, Sodišče EU, Evropska konvencija o človekovih pravicah, 
avtonomija prava EU.

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Sinopsisi / SynopSeS
UDC: 342.7:347:061.1EU
Zbornik znanstvenih razprav 
LXXIX. letnik, 2019, Perspectives on European Union Law, pp. 49–77
Lina Burkelc Juras
Aleš Ferčič
Opinion 2/13: Game Over or Just Another Pit-Stop?
In a controversial Opinion 2/13, the Court of Justice of the European Union (CJEU) 
took a clear and unequivocal position—the Draft Agreement on the EU’s accession to 
the European Convention on Human Rights (ECHR) is incompatible with Article 6(2) 
of the T reaty on EU or with Protocol No. 8 to the ECHR. Consequently, the agreement 
envisaged cannot enter into force unless it is amended accordingly or amended in the 
Treaties. Opinion 2/13 presents a significant challenge on the path of the EU accession 
to the ECHR, but in no case does it eliminate or undermine any association obligations. 
Therefore, the key to Opinion 2/13 will be to find a path that will lead to joining, which 
is not likely to be easy, but it is feasible. If the process of association is to be implemented 
in a professional manner, with expert arguments, and everyday politics do not prevail, it 
is considered that some changes to the Draft Agreement will be possible in the direction 
indicated by the CJEU. If and to the extent that it does not occur, this should not be 
attributed (only) to the CJEU. Let us not forget that in the T reaties, the Member States 
have not only set the EU’s obligation to join the ECHR, but have joined the association 
with certain conditions that the CJEU simply had to take into account. It should also be 
noted that the Member States, if they reach a consensus, as the “master of the Treaties”, 
always have the option to amend the T reaty accordingly (currently, it is more or less clear 
that the revision of the Treaty of Lisbon is necessary, even more realistically than at the 
time Opinion 2/13 was delivered). On the other hand, the CJEU does not, of course, 
have the possibility to review the T reaty of Lisbon, but it must accept the content of the 
T reaties.
Keywords: Opinion 2/13, Court of Justice of the European Union, European Convention 
on Human Rights, autonomy of EU law.