The Reinterpretation of TFEU Article 344 in Opinion 2/13 and Its Potential Consequences

Abstract

On 18 December 2014 the Court of Justice of the European Union (CJEU) delivered Opinion 2/13 and stunned the legal world by declaring that the Draft Agreement on the Accession of the EU to the European Convention on Human Rights (the Accession Agreement) was incompatible with the constituent treaties of the Union. Although some experts, admittedly, had been skeptical about certain aspects of Draft Accession Agreement, no one seems to have expected an opinion so critical and uncompromising. The opinion has consequently received widespread disapproval in the EU legal blogosphere. While there are many threads in Opinion 2/13 that deserve critical analysis, I will focus here only on one: The CJEU’s interpretation and application of Article 344 of the Treaty on the Functioning of the European Union (TFEU)—one of the five separate grounds given for rejecting the Accession Agreement. Specifically, I will compare the approach taken in Opinion 2/13 with the approach of the CJEU in earlier case-law. I will argue that the reasoning and conclusion concerning TFEU Article 344 in Opinion 2/13 is clearly at odds with this earlier case law, notably the leading MOX Plant case. I will also demonstrate how the approach to the issue in Opinion 2/13—if it indeed reflects lex lata—seriously affects numerous treaties that the Union has already concluded.

Available at http://www.germanlawjournal.com/index.php?pageID=11&artID=1671