The ad hoc negotiation group cdDH (“47+1”) on the EU`s accession to the European Convention on Human Rights held its 7th meeting from 24 to 26 November 2020. In the framework of this meeting, the group held an exchange of views with civil society (including representatives of the AIRE (Advice on Individual Rights in Europe) Centre, Amnesty International, the Council of Bars and Law Societies in Europe (CCBE), the International Commission of Jurists and the European Network of National Human Rights Institutions (ENNHRI)). In that regard, it should be noted that, in accordance with Article 218(11) of the Treaty on the Functioning of the European Union, the Parliament, the Council, the Commission or a Member State may request the opinion of the Court of Justice on the compatibility of an envisaged agreement with the provisions of the Treaties. That provision is intended to prevent complications arose from disputes concerning the compatibility with the Treaties of international agreements binding on the European Union (see Opinion 2/94, EU:C:1996:140, paragraph 3, 1/08, EU:C:2009:739, paragraph 107, and 1/09, EU:C:2011:123, paragraph 47). Such a consequence of Article 3(7) of the draft agreement is contrary to Article 2 of Protocol No 8 EU, which provides that the Accession Agreement is intended to ensure that it does not adversely affect the situation of the Member States as regards the ECHR, in particular as regards reservations in that regard. The Commission adds that Article 3(6) of the draft agreement must be accompanied by internal EU rules on the procedure for prior intervention by the Court of Justice. The draft agreement does not contain such rules. However, they should not be incorporated into an international agreement, but should be defined independently at EU level, as their objective is to regulate an internal EU procedure. Nor would it be necessary, or even appropriate, to include these procedural rules in the Treaties. The Treaties already oblige the institutions of the Union and the Member States to ensure that the Union accedes to the ECHR and further provide that such accession does not affect the powers of the Court of Justice.
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