Category Archives: Primacy

Opinion 2/13: EU accession to the ECHR

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The big news is that on 18 December 2014 the Court of Justice has handed down its second negative opinion in Opinion 2/13 EU:C:2014:2475 on the  accession of the EU to the European Convention on Human Rights.

Back in 1996 the Court had decided in Opinion 2/94 that there was no legal basis in the Treaty at that time for the EU to accede (see the summary of the submissions in that case  and the opinion of 28 March 1996). As a consequence of that opinion, Article 6(2) TEU was added to provide a legal basis and states:

2. The Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms. Such accession shall not affect the Union’s competences as defined in the Treaties.

The EU and the Council of Europe then spent some time negotiating an agreement between them allowing for accession to the Convention.  Once that was done, the Commission asked the Court of Justice, pursuant to its jurisdiction under Article 218 (11) TFEU: “Is the draft agreement providing for the accession of the [EU to the ECHR] compatible with the Treaties?”

The Court’s answer is “no”.

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Case C-112/13 A v B and Others – Primacy, preliminary rulings, national constitutional law and national courts

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Back on 11 September 2014 (how time flies !) the Court of Justice handed down an interesting judgment in Case C-112/13 A v B and Others in a rather unusual case. It dealt with the role – and duty – of the national court when faced with national legislation which seemed incompatible with both EU law and with the national constitution.

Indeed, the Court of Justice had some really interesting to say about how national courts should ensure the primacy of EU law. It builds on the important judgment in Melki and Abdeli C‑188/10 and C‑189/10, EU:C:2010:363. The case turned on substance on the interpretation of Council Regulation (EC) no 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. I won’t deal with the substance issues, leaving them to our friends at the excellent Conflict of Laws blog. Just the primacy issue here.

 

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