74
Ingolf Pernice
Deuxième séance de travail — Les retombées
for the binding effect of the meaning, in such cases, of the rights under the
ECHR. The latter – in conjunction with Article 216(2) TFEU – exactly aims at
giving the ECHR and, with it, the judgements of the ECtHR the binding effect
necessary to make the accession to the Convention meaningful. The practice
of ‘parallel interpretation’ envisaged in the Joint Communication of Justices
Costa and Skouris of 17 January 2011 (
62
) may be an instrument to ensure the
coherence needed (
63
). Furthermore, the co-respondent mechanism will be an
important tool for ensuring coherence (
64
), as well as the prior involvement
procedure, giving the ECJ an opportunity to assess the compatibility with the
human rights at issue of the provision of EU law at stake (Article 3(6) of the
Draft Accession Agreement) (
65
).
Another issue could be seen in the fact that the ECtHR must necessar-
ily understand the legal act of the EU under review, and therefore give it an
interpretation, for assessing its compliance with the human rights of the
Convention. Whatever this interpretation may be, however, it is not binding
for the European institutions. Only the judgment of the ECtHR and the in-
terpretation of the relevant human right under the Convention are binding
under Article 46 ECHR. Where the Court states a violation of a human right
by a legal act of the EU, the obligation of the EU would be limited to remedy
this violation by, either, abolishing this act or by giving it an interpretation
which is in compliance with the human right in question.
(
62
) Joint Communication of Justices Costa and Skouris, 17 January 2011, available at: http://
curia.europa.eu/jcms/upload/docs/application/pdf/2011-02/cedh_cjue_english.pdf.
(
63
) See also O’Meara (note 50), 1819.
(
64
) The wording of the co-respondent mechanism (Article 6(2) and (3) of the draft
accession agreement) has been framed in a rather abstract way (‘calls into question the
compatibility…’) and combined with a test of plausibility according to which the ECtHR
limits itself to assessing whether it is plausible that the conditions in Article 6(2) or (3) are
met (Article 6(5) of the Draft Accession Agreement). This arrangement is to prevent that the
ECtHR can decide implicitly on the internal distribution of competencies between the EU
and its Member States and thus interferes with the autonomy of the EU’s legal order.
(
65
) Draft revised agreement on the accession of the European Union to the Convention for the
Protection of Human Rights and Fundamental Freedoms, Annex 1 to the Final Report to
the CDDH, 5 April 2013, available at:
/
Accession/Meeting_reports/47_1 %282013 %29008rev2_EN.pdf.
