EU법과 EU의 유럽인권협약 가입 ― 유럽연합재판소(ECJ) 결정을 중심으로 ―

초록

The member states of European Union(EU) have amended the Article 6 (2) of the Treaty on the European Union(TEU) to access to European Convention of Human Rights(ECHR). In 2013, a treaty for accession to the European Convention on Human Rights was enacted and the European Court of Justice(ECJ) inquired as to whether the treaty would be in conformity with EU law. Contrary to expectations ECJ ruled in 2014 that the treaty would not allow the EU to comply with the ECHR. The ECJ emphasize that the Treaty should guarantee the specific characters and autonomy of the EU law first of all. However, the treaty does not guarantee the specific characters and autonomy of EU law for several reasons. First, it does not provide provisions to adjust authority between Article 53 of the ECHR and Article 53 of the Charter of Fundamental Rights of the European Union. Second, there are no measures to maintain the principle of sincere cooperation in full mutual respect between EU and member states. Third, no measures are taken to prevent violations of the principle of mutual respect in member states pursuant to Protocol Nr. 16 to the ECHR and Article 344 of the Treaty on the Functioning of the European Union(TFEU). Fourth, the co-respondent mechanism, which is perceived as a crucial step in the procedural aspect, may violate the relationship of authority between the EU and member states at the discretion of the European Court of Human Rights(ECtHR) in the joint appeal process. Fifth, there is a limit to the interpretation of the effectiveness of the EU law, which can be reviewed by the ECtHR, before the ECJ judges whether it violate the ECHR under the EU law. Sixth, the ECtHR can take jurisdiction over the Common Foreign and Security Sector (CFSP), in which the ECJ does not have. The opinion of the ECJ has a fundamental problem in that it adopts the most unfavorable way to interpret the EU's accession to the ECHR. The autonomy of the EU law, which the ECJ has argued, it may be characteristic of the EU, but does not mean that EU and EU law are free from the external controls by the ECtHR after its accession to the ECHR. The ECJ does not seem to want to give up its exclusive jurisdiction and power in interpreting and applying EU law and guaranteeing fundamental rights in the EU. The ECJ’s opinion is also problematic in terms of interpretation and logic, but above all, there is a greater problem that the EU has made the efforts and procedures to access to the ECHR more difficult.

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