Status of ECHR and DAA in EU Legal Order

Abstract

The relationship between the Luxembourg and Strasbourg courts, EU law and the Convention system at-large are fundamentally conditioned by the legal status of the Convention and Accession Agreement in EU law. This chapter offers a novel examination of the status of the Convention and the DAA in EU law post-accession, analyzing not only the overall picture of cohabitation and/or competition but also the internal effect that accession will likely pose to the EU legal order (in relation to the Convention and the DAA). This chapter responds to the research question: ‘What is the legal status of the ECHR and DAA in the EU legal order post-accession?’ The chapter starts by examining the position and mode of penetration of international agreements in EU legal order, giving special emphasis to the effect that such agreements produce within the EU legal order. Haegeman, Commission v. Germany, Demirel and Bananas are examined to deconstruct Luxembourg’s stance on international agreements concluded by the EU, either alone or together with Member States. A careful deconstruction of Luxembourg’s jurisdiction to observe those agreements is also provided, showing how similarities may be drawn with regard to both the Convention and Accession Agreement. Then, the chapter embarks on an examination of the status of the Convention and the DAA, contrasting them with current Luxembourg benchmarks on international agreements. Arguing that neither the Convention nor the DAA form part of the usual international agreements which the EU has concluded, the chapter goes on to provide a novel analysis of the status of Convention and the DAA in the EU legal order arguing that this should be taken as a very unique case. The chapter then provides a comprehensive analysis on the specific status of the Convention and the DAA post-accession, examining both their rank and implied position within a multilayered system of human rights, while considering potential implications.