Kanad Bagchi: “EU Accession to the ECHR: In Defense of the ECJ”

Comments on The Fallibility of The European Union Accession Project

Opinion 2/13 received considerable criticism from the academic world both in terms of its uncompromising stance and inaccurate reasoning.[1] That apart, literature depicting the Court of Justice of the European Union (“ECJ”/ “Court”) as a power hungry and haughty institution received a renewed boost along with increasing skepticism concerning the current status quo of the relationship between Europe’s twin courts.[2] In the melancholy that followed, it is surprising to notice the near absence of judicial deference to a constitutional court’s onerous task of striking a balance between constitutional vigil and progressive latitude. The purpose of this article is not to assuage the ECJ of all its criticisms, but to equitably measure the feasibility of an alternative outcome. In this regard, the opinion of Advocate General (“AG”) Juliane Kokott[3] presents a rather nuanced approach towards all but two objections advanced by the ECJ on the Draft Accession Agreement (“Accession Agreement”),[4] which notably has eluded critical appraisal. In what follows, the author briefly addresses the commonality of the issues that drew the attention of both the AG and the ECJ, partly to elucidate the unassailable position of the Court and partly to substantiate his own assessment of the opinion. read more

Oskar Josef Gstrein: “The European Union and its Reidentification as a Guardian of Human Rights”

Introductory note: This text is based on a public speech delivered at the University of Heidelberg as part of the “Monday Conferences” in the Summer Term of 2014.


I. Introduction

Ladies and Gentlemen,

First, I would like to thank you for inviting me to speak to you today. It is a great pleasure to share my thoughts on the topic “The European Union and its reidentification as a guardian of human rights”.

Let me say right away that we are all witnesses to a tremendously exciting phase in the development of Europe’s legal systems. For lawyers it is thus a great challenge to understand the complex constellations of the European multi-level systems in detail and even more so to illustrate them. Our topic today holds a key position in this context.

Since the beginning of the European integration movement in the aftermath of the Second World War, the relationship of the European Union and its predecessor organisations with the protection of fundamental rights has not been an easy one. The European Economic Community (EEC) (established on 25 March 1957 in Rome by its six founding nations) as well as its successor organisations, the European Community (EC) and today’s European Union (EU) are a ”creation of law”,[1] and as such they necessitate a strong link to historically and politically legitimising elements such as the safeguarding of fundamental and human rights. Only such a legitimisation can prevent the codifying of this supranational legal order[2] in a way that EU citizens would perceive as an unjustifiable subjugation.

In this context, the following question arises: What does the protection of fundamental rights need to look like in order for the EU to be perceived as just and humane and to bear out its claims to be a home for its citizens? read more

Prof. Dr. Thomas Giegerich LL.M.: “Essentials of European Law: Antidiscrimination Law”


I. Introduction

Both the Council of Europe and the European Union adhere to and try to implement the principle of equal rights and non-discrimination for all. Their respective efforts reinforce and complement one another. Since 1950, Art. 14 of the European Convention on Human Rights (ECHR) of 1950 (see below II.) has set out an accessory prohibition of discrimination based on a non-exhaustive list of problematic grounds. The exact content of this provision has been clarified by numerous decisions of the European Court of Human Rights (ECtHR). All the EU Member States are bound by the ECHR whose provisions are used by the Court of Justice of the EU (ECJ) as a means to interpret EU law. It took the Council of Europe Member States fifty years to draw up an independent and comprehensive prohibition of discrimination which is included in Protocol No. 12 of 2000. While the Protocol has meanwhile entered into force only a minority of the Convention States (and only eight of the EU Member States) have ratified it. Apparently, many of them are disinclined to give the ECtHR the final say on whether or not distinctions they make in their laws are “reasonable”. The European Union is about to accede to the ECHR, but not Protocol No. 12. read more