Two aspects of the EU legal order autonomy doctrine in the CJEU Opinion 2/13: Protocol 16 ECHR and Art. 344 TFEU
| Autor | Nasiya Daminova |
| Cargo | PhD candidate in European Law, Scuola Superiore Sant'Anna, DIRPOLIS Institute, Pisa |
| Páginas | 35-49 |
P A N Ó P T I C A
DAMINOVA, Nasiya. Two aspects of the EU legal order autonomy doctrine in the CJEU O pinion
2/13:Protocol 16 ECHR and Art. 344 TFEU. Panóptica, vol. 10, n. 2, 2015 (jul./dez.), pp. 35 -49.
35
Two aspects of the EU legal order autonomy doctrine in the CJEU
Opinion 2/13: Protocol 16 ECHR and Art. 344 TFEU
Nasiya Daminova1
Recebido em 20.10.2015
Aprovado em 05.12.2015
1. Introduction
Opinion 2/13, released on 18 December 2014, looked to be a very big surprise for
almost everyone dealing with European law matters. The answer of the CJEU was negative as
the Draft accession agreement – which was previously seen as a result of a consensus by most
leading scholars and practitioners2 - failed to give regard to the specific characteristics of EU
law. This ‘specificity’ was previously summarized by the Lisbon Treaty, Protocol No. 8 and
the CJEU case-law as follows: an external autonomy, supranational character, as well as the
monopoly of the Court of Justice to decide on the distribution of competences between the
EU and its Member States, and to interpret and review the legality of EU acts. 3 One of the
reasons for this approach was the development of the EU legal order autonomy doctrine in
Opinion 2/13. This work aims to explore the CJEU’s approach to Protocol 16 ECHR and Art.
344 TFEU in Opinion 2/13 in the light of such famous judgments as MOX Plant, A v. B and
Melki and Abdeli cases. The paper develops a critique of Opinion 2/13, analyzing if and how
1 Nasiya Daminova (nasiya.daminova@sssup.it), PhD candidate in European Law, Scuola Superiore Sant'Anna,
DIRPOLIS Institute, Pisa. I would like to thank Giuseppe Martinico, Leonardo Pierdominici, Sara Po li, Diane
Fromage and other participants of ‘STALS Docto ral Workshop in European Constitutional Law’, held in Pisa on
20 March 2015 for their thoughtful comments and ad vice. Any errors that remain are my sole responsibility of
course.
2See, for example, Roberto Baratta, ‘Accession of the EU to the ECHR: The rationale for the ECJ’s prio r
involvement mechanism’ (2013) 50, Common Market Law Review (Issue 5)1305–1332 1311; Jörg Polakiewicz,
‘EU Law and the ECHR: Will EU Accession to the European Convention on Human Rights Square the Circle?’
(SSRN, September 26, 2013) http://ssrn.com/abstract=2331497accessed 15 March 2015, 12; Paul Gragl, ‘A giant
leap for European Human Rights? The Final Agreement on the European Union’s accession to the Europea n
Convention on Human Rights’ (2014) 51, Common Market Law Review (Issue 1) 13–58 16.
3See, for example, Opinion 1/91, Re Draft agreement between the Community, on the one hand, and the
countries of the European Free Trade Association, on the other, relating to the creation of the European
Economic Area[1991] ECR I-6079;Opinion 2/94, Re Accession by the Communities to the Convention for the
Protection of Human Rights and Fundamental Freedoms[19 96] ECR I-1759;Opinion 1/00, Re Agreement
between the European Community and non-Member States on the establishment of a European Common
Aviation Area [2002] ECR I-3493.
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