European Exceptionalism and the EU's Accession to the ECHR

Abstract

In a December 2014 opinion, the Court of Justice of the Union (CJEU) torpedoed the draft accession agreement that would have enabled the EU to accede to the Convention on Human Rights (ECHR) on the grounds of its incompatibility with the EU’s constitutional structure. The opinion has been widely criticized as evidence of the CJEU's unwillingness to be bridled by another international court and its anxiety over losing its self-proclaimed primacy within Europe’s juridical space. This short essay argues that the Court's reasoning is symptomatic of an hubristic attitude of European exceptionalism that pervades the self-understanding of EU institutions, not least the Court itself. According to the exceptionalist narrative, the enlightened character of EU institutions exempts them from the normative constraints designed to check more imperfect forms of political organization such as nation-states. The paper submits that this is a more alarming, not to mention ironic, stance for a supranational Court to espouse than either institutional self-importance or exaggerated anxiety over constitutional incompatibility.