Opinion 2/13 of the Court of Justice on the Accession of the EU to the ECHR

On 18 December 2014, the anticipated Opinion 2/13 on the agreement on the accession of the EU to the European Convention on Human Rights (hereinafter, "ECHR") was issued by the Court of Justice (hereinafter, "ECJ"). This opinion follows the amendments introduced by the Lisbon Treaty. In fact, the Lisbon Treaty expressly sets forth, in Article 6 (2) TEU, that the EU accedes to the ECHR, in order to solve the issue of lack of competence of the EU pointed out by the ECJ in its Opinion 2/94, upon the first attempt at accession. This new opinion is the culmination of several years of negotiations between the Commission and the Council of Europe with a view to the accession.

In fact, although all 28 EU member States are members of the Council of Europe and of the ECHR, the EU as such is not a party to the ECHR. In practice, this means that (i) the acts and omissions carried out by the institutions, bodies and agencies of the EU cannot be contested before the European Court of Human Rights (hereinafter, "ECtHR"), and (ii) although the established case law of the EU courts affirms the special significance of the ECHR as regards the protection of fundamental rights, the case law of the ECtHR cannot be relied on by individuals and companies before the EU courts, given that the latter are not bound by said case law.