1. Consequences of the delay: the perspective of a non-EU member State Strasbourg, Council of Europe, March 2017
Alexei Ispolinov
Head of International Law Department, Lomonosov Moscow State University

2. The CJEU Opinion 2/13
The Opinion 2/13 provoked feelings of disbelief, disappointment and even dismay among the European scholars
Is that true that the Opinion just reflects the fears of the CJEU to lose its powers?
The logic of the Court of Justice requires certain level of knowledge and understanding of the specifics of the EU Law
The draft of the Accession Agreement have been torpedoed by the CJEU for a number of valid reasons 2

3. The accession and its conditions
The Lisbon Treaty proclaims that the Union “shall accede” to the European Convention
It’s a conditional obligation: the conditions of the accession have been stipulated in Protocol 8 (the autonomy of the EU legal order is among these conditions)
The CJEU will give the final judgment on whether these conditions have been met
The position of the Court of Justice is crystal clear: the preservation of the EU legal order is a priority in this case 3

4. Two different legal orders
The ECHR is an international court supervising performance of the states’ obligations under the European Convention and it has an exclusive right to interpret the Convention
The CJEU is a supranational court claiming that the EU is an autonomous legal order where the CJEU has interpretation monopoly
The EU law has precedence over national law and international agreements including the Charter of the United Nations (Kadi-1 Case)
Following this logic, the European Convention and the Accession Agreement shall also be below EU primary law, including the Charter of fundamental rights 4

5. Two different courts
The main reason behind the Opinion 2/13 is practical impossibility to reconcile ambitions and missions of the ECHR and the CJEU
The ECHR sees the EU as an association of 28 independent states
For the CJEU the European Union is an emerging quasi federation and the CJEU’s actions might be considered a judicial federalization of Europe 5

6. Different missions = different attitudes
different attitudes regarding 2 sensitive issues : the European Arrest Warrant and the EU Dublin system dealing with asylum seekers and illegal migrants
The cooperation of the EU member states in this filed is based on the principle of mutual trust
The authorities of the EU member states’ are precluded from checking an actual level of observance of the rights and freedoms in another member State in a specific extradition case in question(like in any federation)
It totally contradicts to the established ECHR case law concerning extradition ( international law approach) 6

7. Perspectives after the Opinion 2/13
I am now even more skeptical than before on the Opinion 2/ the accession could never happen
The CJEU’s need in the European Convention seems less obvious year by year
The ongoing process of judicial federalization of Europe launched by the CJEU could result in gradual minimization of the involvement of the ECHR by coalition of national courts of the EU member states and the CJEU armed by the Charter of the Fundamental Rights 7

8. Perspectives after the Opinion 2/13
Is it possible to amend the Draft of the Accession Agreement in order to take into account all objections of the Court of Justice?
Even the first draft “killed” by the CJEU was a semi- persuasive attempt to reconcile supranational and international legal orders of different courts
The CJEU certainly demands exclusivity from the general supervision mechanism of the Convention (a sort of carving out provisions) 8

9. Carving out the European Union
In this case we will get a de jure segregation of the all states of the Council of Europe into 2 groups
One is the EU member states with the Charter of Rights and the CJEU offering more effective system of protection of rights in coalition with national courts
Another group – non-EU member states (candidates to the EU and countries which will never become the members of the EU like Russia) 9

10. Ghetto for the non-EU members?
Such segregation might look like a ghetto and the ECHR as a court dealing with its inhabitants
For the ECHR this scenario will mean its gradual marginalization, as the role of the Court would be to make dirty preliminary work and become a “purgatory” for the CJEU
It will have devastating and detrimental effect for the European system of the protection of human rights
Such double standards will undermine the ECHRэы credibility and legitimacy 10

11. What could be done?
The “ghetto” scenario is totally unacceptable for Russia
We believe that the ECHR is already equipped enough and ready to perform indirect supervision of all EU acts without the accession
The ECHR should review actions of EU member states making indirect review of the EU law (80% of national law is literal implementation of the EU aw )
Re-consideration and re-calibration of the Bosphorus presumption
joint responsibility of EU member states for the acts of Union institutions? 11

12. Opinion 2/13 as invitation to fight
The relationship of ECHR and constitutional courts of the EU member states should be reconsidered
All of them are allies of the ECHR and the most obvious victims of the expansionist policy of the CJEU
Now these courts are fighting for their own place and voice in the European constitutional order (counter limits doctrine)
The saga with EU Data Retention Directive which required the telecom companies to secure the storage of all calls and messages
As a result of the revolt of the constitutional courts the CJEU annulled the Directive entirely on the basis of its unconformity with the provisions of the Charter 12

13. Conclusions
The accession of the EU is not in agenda for near future and could never happen
Such accession shall not be arranged by any means and at expense of authority and reputation of the European Court of Human Rights
Russia needs the ECHR and will support its active stand towards the EU
we expect and welcome active participation of the ECHR in strengthening human rights dimension in our own Eurasian Union through review of acts of its Member states parties of the Convention (Russia and Armenia) 13

14. Thank you for your attention!