70
Ingolf Pernice
Deuxième séance de travail — Les retombées
In some way, thus, the autonomy of the EU legal order is also an embed-
ded one with regard to international law; the so far final decision in the Kadi-
story, however, leaves the impression that the spirit of cooperation suggested
by the Advocate General Bot (
46
) did not discourage the Court to undertake
a thorough review of the procedures applied to the applicant and, finally, to
maintain the General Courts’ decision to annul the regulation implementing
the decisions of the UN Security Council’s Sanction Committee (
47
).
3.
Practical Issues of Autonomy
The autonomy of the EU’s legal order is presently at stake in at least three
instances to be discussed hereafter: The accession of the EU to the ECHR (in-
fra 1.), the application of arbitration clauses in bilateral investment treaties
(infra 2.) and the case pending before GFCC regarding the OMT-programme
of the ECB (infra 3.).
1. Accession of the EU to the ECHR
Article 6(2) TEU provides for the accession of the European Union to the
European Convention for the Protection of Human Rights and Fundamental
Freedoms (ECHR). The draft agreement on the accession was finalized on 5
April 2013, an opinion of the ECJ on it is announced (
48
). To be a contract-
ing party to the Convention means for the EU that upon complaint by an
individual or a state party to the Convention the European Court of Human
Rights (ECtHR) would have the power to review the compatibility of any legal
act of the Union with the human rights guaranteed in the Convention (Article
34 ECHR). Given the jurisprudence of the ECJ regarding the autonomy of the
EU legal order vis-à-vis international Treaties (
49
) the question is whether this
amounts to be a challenge to the autonomy of the EU legal order (
50
). Though
(
46
) Advocate General Yves Bot in Joined Cases C-584/10 P, C-593/10 P and C-595/10 P
Commissionand Others
v
Kadi
, paragraphs 44 et seq., 65-110, suggesting ‘to develop
cooperation between the Union and the United Nations in the area in question’ (ibid.,
paragraph 76).
(
47
) ECJ Joined Cases C-584/10 P, C-593/10 P and C-595/10 P
Kadi II,
judgment of 18 July 2013.
(
48
) See Council of Europe,
Milestone reached in negotiations on accession of EU to the European
Convention on Human Rights,
Press release – DC041(2013).
(
49
) See supra II.2.
(
50
) For an analysis see Lock,
Walking on a Tightrope: The draft ECHR accession agreement
and the autonomy of the EU legal order
, CML Rev. 2011, 1025–1054. Sceptic also: Noreen
