Vassilis Pergantis (Aristotle University of Thessaloniki – Law, Economic and Political Sciences) & Stian Øby Johansen (University of Oslo – Centre for European Law) have posted The EU Accession to the ECHR and the Responsibility Question: Between a Rock and a Hard Place (in C. Kaddous, N. Levrat, R. Wessel (eds), THE EU AND ITS MEMBER STATES’ JOINT PARTICIPATION IN INTERNATIONAL AGREEMENTS, Oxford, Hart, 2022, pp. 231-249) on SSRN. Here is the abstract:
The contribution explores the effects of the principle of autonomy on the EU accession to the ECHR, focusing particularly on its interaction with the DAA’s responsibility allocation provisions. It firstly outlines the contours of the principle as applied by the CJEU to international dispute settlement mechanisms in treaties where the Union participates jointly with its Member States. Then, the rather convoluted provisions on attribution of conduct and shared responsibility in the 2013 DAA are untangled, the reasons for the CJEU’s finding that they represent a threat to the autonomy of the EU legal order are explained. The gist of the argument is that any allocation of responsibility by the ECtHR between the Union and its Member States will necessarily imply an assessment of competence allocation between them. Consequently, the only remaining option for the accession appears to be the further simplification of these rules so that they can be applied more-or-less automatically, thus shifting any requisite regulation of the responsibility allocation question and the consequences of wrongfulness to EU-internal rules. Yet, our conclusion is that such an arrangement will not preserve the idea of the EU acceding to the Convention on equal footing, and runs the risk of undermining the proper administration of justice. The DAA negotiators are thus stuck in no man’s land, with no obvious way out. Ultimately, the principle of autonomy hinders the joint participation of the Union and its Member States in treaties that confer rights on individuals and give them access to judicial dispute settlement mechanisms.