71
Second working session — The impact
the obligation to accede the ECHR in Article 6(2) TEU could be understood to
modify the principle of autonomy insofar as the autonomy is limited and may
not be put forward against judgments of the ECtHR at all, Article 2 of Protocol
No 8 to the Lisbon Treaty stating that the accession agreement ‘shall not af-
fect the competences of the Union or the powers of its institutions’ seems to
preserve the current status of the EU and its law to the greatest possible extent.
This provision can indeed be understood as a ‘reference to the preservation of
the autonomy of EU law’ (
51
).
According to the jurisprudence of the ECJ referred to above, in general,
agreements are not acceptable if they are ‘likely adversely to affect the al-
location of responsibilities defined in the Treaties and the autonomy of the
Community legal order, respect for which must be assured exclusively by the
Court of Justice pursuant to Article 164 of the EEC Treaty (sc. Article 19(1)
TEU’ (
52
)). Provision must therefore be made for ensuring that the objec-
tive enshrined in Article 19 TEU (Community law is to be interpreted uni-
formly), that the Court’s function of reviewing the legality of the acts of the
Community institutions is not questioned and that the essential character of
the powers of the Community and its institutions as conceived in the Treaty
remain unaltered (
53
). In particular,
—— Procedures for ensuring uniform interpretation of the rules of an in-
ternational agreement and for resolving disputes shall not have the ef-
fect of binding the Union and its institutions, in the exercise of their
internal powers, to a particular interpretation of the rules of Union law
referred to in that agreement (
54
).
—— An international agreement cannot affect the allocation of responsi-
bilities defined in the Treaties and, consequently, the autonomy of the
O’Meara,
A More Secure Europe of rights?, The European Court of Human Rights, the Court
of Justice of the European Union and EU
, Accession to the ECHR, 12 German Law Journal
(2011), p. 1813, 1827.
(
51
) Lock (note 50), p. 1033. This understanding can be based upon ECJ Joined Cases C-402/05
P and C-415/05 P
Kadi
[2008] ECR I-6351, paragraph 282, with reference to its former case-
law, stating that ‘an international agreement cannot affect the allocation of powers fixed by
the Treaties or, consequently, the autonomy of the Community legal system’.
(
52
) ECJ Opinion 1/91
EEA
[1991] ECR I-6079, summary, paragraph 2.
(
53
) ECJ Opinion 1/91
EEA
[1991] ECR I-6079, paragraphs 41-46; ECR Opinion 1/00
ECAA
[2002] ECR I-3493, paragraphs 11-12.
(
54
) ECJ Opinion 1/00
ECAA
[2002] ECR I-3493, paragraph 13.
