349Friendly Settlements and Unilateral Declarations in Cases Involving EU law Αfter the EU’s Accession to the ECHR: Words of Caution and Post Involvement by the CJEU[*]

Assoc. Prof. Lize R. Glas

International and European Law, Faculty of Law, Radboud University, The Netherlands

1. Introduction

The EU’s accession to the European Convention on Human Rights (ECHR) has taken a major step forward with the adoption of the revised Draft Accession Agreement in April 2023[1]. This agreement addresses all, but one of the issues identified by the Court of Justice of the European Union (CJEU) in Opinion 2/13: EU acts in the area of common foreign and security policy (CFSP)[2]. In this opinion, the CJEU blocked accession on the basis of the conditions set out in the 2013 Draft Accession Agreement[3]. The EU will first resolve the CFSP issue internally, after which its 350proposed solution will probably be added to an amended Accession Agreement[4]. In the meantime, the CJEU’s KS and KD judgment has arguably facilitated the resolution of this issue, thus making accession “an ever more realistic prospect”[5]. Be that as it may, we need to prepare for the long haul, as a new CJEU Opinion is still required[6] and each of the 46 states parties to the ECHR will have to ratify the Accession Agreement[7].

In short, the EU’s accession is at least a realistic prospect. Since its accession is in any case a legal obligation[8], the time is ripe to examine in this special issue certain procedural aspects of the EU’s participation in ECHR proceedings after its accession. This article assesses the role that friendly settlements (FSs) and unilateral declarations (UDs) may play in cases involving EU law after accession. These two procedures play an increasingly important role in the proceedings before the ECtHR, mainly to reduce its workload[9]. They are a means of resolving a case after it has reached Strasbourg, but before the ECtHR has delivered a judgment[10]. An FS is an agreement between the parties on how they wish to resolve a case; a UD is a proposal by the respondent state only[11]. The ECtHR must approve both documents before it can strike a case out of its list of cases based on an FS or UD[12]. The potential role of FSs and UDs in cases concerning EU law post accession has not yet been explored in detail in the academic literature[13], although they may play a useful role after accession, as this article will show.

351Before assessing their role after accession, section 2 describes the role that the procedures play in the current ECHR system. Section 3 discusses their potential in three scenarios where EU law may play a role before the European Court of Human Rights (ECtHR; Court) after accession: where the EU is the respondent party, where the co-respondent mechanism applies and where prior involvement of the CJEU is requested.

2. Friendly settlements and unilateral declarations in the current Convention system

I will describe the current content, the conditions for the approval, and the advantages and disadvantages of FSs and UDs (sections 2.1-2.2). As noted before, FSs and UDs are playing an increasingly important role in the ECHR proceedings. In order to understand their increased importance, the two procedures will be situated by discussing the two phases in which ECHR proceedings are now normally divided: the non-contentious and the contentious phases (section 2.3).

2.1. Friendly settlements

FSs are an agreement between the parties that they conclude after confidential negotiations[14]. Due to the confidentiality, the content of the negotiations cannot be referred to during the contentious proceedings[15]. Although the Court “may place itself at the disposal of the parties concerned with a view to securing” an FS “at any stage of the proceedings”, the Registry does so mainly at the non-contentious phase of proceedings and does so routinely when a case can be decided based on well-established case-law[16]. The role of the Registry has been likened to that of a mediator, as it “does not only mediate in the negotiations, but it also gives advice and information about previous case-law”[17]. When the Registry does not make a proposal, it invites the parties to communicate whether they have a proposal of their own[18]. If the ECtHR accepts an FS, the application is struck out of the list of cases by means of a decision that briefly states the facts and the solution reached[19]. The decision is forwarded to the Committee of Ministers (CM), which supervises the execution of the FS[20]. Between 2019 and 2024, the average number of FSs was 1.653[21], which is 352somewhat lower than the average for the previous six years (1.749)[22]. The average number of FSs is higher than the average number of judgments delivered between 2019 and 2024, which was 1.023[23].

2.1.1. Content, legal basis and conditions for approval

The Registry sets out the terms of the FS “by way of an appended ‘pro forma’ offer letter in the name of the Government Agent and an acceptance letter in the name of the applicant’s representative –both requiring only a signature”[24]. The only proposal contained in the offer letter is usually an ex gratia payment, which means that the state does not acknowledge or compensate for a violation[25]. In addition, the FS usually contains an undertaking by the parties not to request referral of the case to the Grand Chamber[26]. As the foregoing implies, FSs rarely contain other undertakings, such as an undertaking to investigate the circumstances leading to the alleged violation[27]. However, it is not excluded that FSs may contain other terms. In the past, FSs have included apologies, acknowledgments of a violation, non-monetary individual measures and general measures[28].

The legal basis of FSs can be found in Article 39 ECHR. The first paragraph of this provision stipulates that FSs can be concluded “on the basis of respect for human rights as defined in the Convention and the Protocols thereto”, which is the so-called human rights condition[29]. It has only happened “very rarely” that the ECtHR has not accepted an FS[30]. The ECtHR usually does not substantively argue why this condition has been met[31], and it virtually never mentions that it has rejected an FS, 353presumably due to the confidential nature of the procedure[32]. The ECtHR’s lack of reasoning makes it difficult to understand why the human rights condition has been met in an application[33].

2.1.2. Advantages and disadvantages[34]

For both the applicant and the state, FSs are a relatively expeditious and budget-friendly method of concluding a case[35]. A reason why FSs may be attractive to the applicant specifically is that the states “may be interested to pay higher rates of compensation and make more specific commitments in order to avoid a judgment on the merits”[36]. The downside of an FS from the applicant’s perspective is that an FS receives less publicity than a judgment and normally only includes an ex gratia payment[37].

The state may find FSs attractive precisely because the ECtHR will not find a violation in a public judgment that might attract negative headlines[38]. This makes FSs particularly attractive when the applicant has a strong case[39]. Similarly, the conclusion of an FS prevents an increase in negative statistics, because no violation is found[40]. Moreover, an adverse judgment may oblige the state to make general changes to its domestic legal system[41], which it may wish to avoid. Alternatively, it may wish to make these changes as part of other legislative amendments and at its own pace, rather than in response to a judgment[42]. In addition, a state may already be in the process of resolving a domestic problem that has caused an alleged violation, possibly as part of the execution of a previous judgment[43]. FSs may then be used to “remedy transitional problems”[44].

3542.2. Unilateral declarations

UDs are a proposal by the state about how it wishes to resolve a case. The ECtHR has described UDs as “an extension of” the FS stage, because, if it concludes that “the applicant refuses without justification to accept a reasonable proposal made by the respondent state”, the state may file a UD in order to provide the ECtHR with an alternative basis to strike the case out of its list of cases[45]. Although the consent of the applicants is not required for accepting a UD, their “position is always sought”[46]. If the applicant happens to accept a UD, the ECtHR treats it as an FS[47]. The CM does not supervise the execution of UDs[48]. The ECtHR may, however, “decide to restore an application to its list of cases if it considers that the circumstances justify such a course”[49]. This hardly ever happens[50]. In the period 2019-2024, the average number of UDs was 655[51], while the average number of judgments issued in this period was 1.023[52]. In the previous six years, the average number of UDs was 1.210[53].

2.2.1. Content, legal basis and conditions for approval[54]

The terms proposed by the state in a UD are often similar to those proposed by the Registry in the FS proposal[55], although the payment may not be ex gratia in nature[56]. Most UDs are short: the state acknowledges the violation and promises to pay compensation[57]. Occasionally, other individual measures are required due to the nature of a violation or general measures may be included[58]. If the UD is more elaborate, the state may, for example, briefly explain the facts, relevant domestic law[59], or the circumstances 355in which it accepts the violation[60]. The states express regret only in exceptional cases[61]. In repetitive cases and especially when several applications are joined, the ECtHR usually gives a general description of the facts without reference to the individual cases in its decision; the applicants’ details are listed in the appendix[62]. The ECtHR’s examination of a UD is usually limited to verifying whether the two requirements of Rule 62A(b) are met (an acknowledgement of the violation and an undertaking to provide adequate redress)[63] and whether it has already established clear and extensive case-law concerning the subject of the complaint. If the ECtHR rejects a UD, it usually states its reasons for doing so, but the exact reason for the rejection is not always clear, as it sometimes simply states that it has rejected the respondent state’s request[64]. The ECtHR accepted the UDs for around ninety percent of the applicants who were faced with a UD in the five-year period following 2 April 2012[65].

Unlike FSs, UDs cannot be found in the ECHR. Instead, the ECtHR has developed UDs in its case-law under Article 37(1)(c) ECHR, which provides that the “Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that”, “for any other reason established by the Court, it is no longer justified to continue the examination of the application”. The Court may not rely on this provision to strike an application out “if respect for human rights as defined in the Convention” requires it to continue the examination of the application. The Rules of Court set out two more specific requirements for the content of a UD: the respondent state must “clearly” acknowledge that there has been a violation and must undertake to “provide adequate redress and, as appropriate, to take necessary remedial measures”[66]. The Court most often rejects a UD because the proposed individual redress is insufficient[67].

In addition, and in order to determine whether respect for the ECHR rights requires it to proceed with the examination of an application, the ECtHR takes into account a number of factors: the “nature of the complaints made, whether the issues 356raised are comparable to issues already determined by the Court in previous cases, the nature and scope of any measures taken by the respondent Government in executing judgments delivered by the Court in such cases, and the impact of these measures on the case under consideration”[68]. In addition, it may “be material whether the facts are in dispute between the parties, and, if so, to what extent, and what prima facie evidentiary value is to be attributed to the parties’ submissions on the facts”[69]. In practice, the factor relating to previous cases seems to be the most important[70].

According to the Rules of Court, the respondent state may adopt a UD “[w]here the applicant has refused the terms of” an FS[71]. The step of first attempting to reach an FS first may only be skipped “[w]here exceptional circumstances so justify”[72]. The Court has explained that such circumstances include repetitive cases[73]. As I noted earlier, it “is odd to qualify repetitive cases as an exceptional circumstance, because repetitive cases are very common”[74]. These cases account for some seventy percent of the cases pending before the CM[75]. Another procedural requirement is that the filing of a UD “must be made in public and adversarial proceedings conducted separately from and with due respect for the confidentiality of any friendly-settlement proceedings”[76].

2.2.2. Advantages and disadvantages[77]

Unlike FSs, UDs are by definition not welcomed by the applicant[78]. Nevertheless, they are a relatively quick way of resolving a case. One of the disadvantages of an FS also applies to a UD: they receive less publicity than the average judgment. In addition, the execution of a UD is not supervised by the CM[79].

In general, UDs are seen as being in the interest of the states and perhaps even as a useful tactic for them, because, like FSs, they prevent a negative increase in the Court’s statistics on the number of violations. Indeed, a UD prevents the ECtHR 357from finding a violation. Moreover, UDs, also like FSs, are generally considered to be efficient in terms of time and cost[80]. Additionally, the state itself chooses the terms, which may make UDs more attractive to states than FSs, whose terms are proposed by the Registry or need to be negotiated with the applicant[81]. The required acknowledgement of a violation can act as an obstacle to filing a UD, because when the Court does not approve of a UD, the position of the government is weakened because of the acknowledgment[82]. This requirement may also pose challenges for substantive reasons if there is, for example, a relevant Supreme Court judgment finding no violation, which would require the government to go against that judgment in a UD[83].

2.3. Situating friendly settlements and unilateral declarations in the ECHR proceedings

In the Copenhagen Declaration (2018), the states parties invited the ECtHR to achieve a “balanced caseload”, including, by “exploring how to facilitate the prompt and effective handling of cases, particularly repetitive cases, that the parties are open to settle through” an FS or a UD[84]. The two procedures are thus seen as a “workload management tool”[85] for reducing the caseload of repetitive cases that can be solved based on well-established case-law. In this way, the ECtHR will have more time to decide on more complex cases[86]. Indeed, in 2021, the ECtHR announced that, as part of a new case-processing strategy[87], it would increasingly focus on so-called impact cases, which “address core legal issues of relevance for the State in question and for the Convention system in general”[88]. It should be noted, however, that FSs have 358not always been primarily a workload management tool; the first settlements were approved by the now defunct European Commission of Human Rights in the 1960s, when the caseload problem did not yet exist[89].

In order to facilitate the adoption of FSs and UDs, as requested by the states in Copenhagen, the ECtHR adopted a twelve-week non-contentious phase[90]. This phase commences once the Court has decided to communicate an application to the respondent state and has preliminary examined its admissibility[91]. If an FS (or a UD) is not adopted, the contentious phase begins, during which the parties exchange their written observations. In principle, this phase also lasts twelve weeks[92]. As a result of the division of the proceedings into two phases, the respondent state no longer has to conduct FS negotiations and draft its observations simultaneously. This makes it easier to concentrate on the negotiations[93].

During the non-contentious phase, the Registry of the Court usually makes an FS proposal when communicating an application to the state. The proposal includes a sum of money and possibly other undertakings[94]. In particular, the Registry does so when an application can be resolved on the basis of well-established case-law[95]. It will not normally make an FS proposal in cases that raise a new Convention issue or “where for any specific reason it may be inappropriate to propose” an FS[96], including where there are “grave unresolved systemic underlying issues”[97]. The CDDH has suggested 359that the Registry should also not propose an FS when an application is “politically and/or a media sensitive”[98]. The Registry also appears to have adopted a more “proactive approach” to UDs, “directly inviting Governments, if they no longer wish to continue [FS] negotiations, to submit a [UD] within a specified time-frame”[99]. The non-contentious phase applies to all cases, “with a limited number of exceptions”[100], i.e., where it is “not appropriate” to divide the proceedings into two phases[101].

Most FSs and UDs are adopted in the non-contentious phase, but they can be used at any stage of the proceedings[102]. These documents may also be used to deal with only part of a complaint or be limited to addressing the question of just satisfaction under Article 41 ECHR, when the Court has reserved this question in its judgment on the merits[103].

It is open to doubt if the aim of the non-contentious phase (i.e., facilitating FSs and UDs) has been achieved, since the number of FSs and UDs has decreased in the six years after the policy change compared to the six years before that[104]. However, the number is almost the same for FSs and we do not know what the situation would have been if policy had not been changed. Moreover, the number of applicants affected by a decision to approve an FS or a UD is unknown (unlike the number of decisions in which the Court approved an FS or a UD, which can concern multiple applicants).

3. Friendly settlements and unilateral declarations after Accession

The question of UDs and FSs in cases involving EU law after accession does not seem to have been discussed in the meetings leading up to the adoption of the Draft Accession Agreement, as it does not appear in any of the meeting documents. Moreover, neither procedure is mentioned in the Draft Accession Agreement. However, as noted below, the procedures are briefly mentioned in the Draft Explanatory Report to the Accession Agreement (“Draft Explanatory Report”).

This section discusses the potential of FSs and UDs in three different scenarios where EU law may play a role before the ECtHR after accession: where the EU is the respondent party (section 3.1), where the co-respondent mechanism applies (section 3.2) and where, in addition to the co-respondent mechanism, the prior involvement of the CJEU is requested (section 3.3).

3603.1. The EU as the Respondent Party

After accession, Article 39 ECHR (FSs) and Article 37 ECHR (UDs) will also apply to proceedings in which the EU is the respondent[105]. This is in line with one of the general principles on which the Draft Accession Agreement is based, namely that the “current control mechanism of the Convention should, as far as possible, be preserved and applied to the EU in the same way as to other High Contracting Parties, by making only those adaptations that are strictly necessary”[106].

The ECtHR’s policy is that the non-contentious phase applies to all cases with a limited number of exceptions[107]. At present, the Registry normally makes an FS proposal when a case can be settled based on well-established case-law. However, when a case brought against the EU raises a novel legal issue, the logic behind the non-contentious phase, i.e., to facilitate the adoption of FSs in repetitive cases, does not apply. In addition, some of these cases will be media sensitive, which is another reason to make an exception[108]. I therefore propose that the non-contentious phase should be applied with caution in cases brought against the EU, especially in the first years after accession, also in order to avoid unnecessary delays. It is particularly important to avoid such delays considering that the possible addition of a co-respondent[109] and the possibility of prior involvement of the CJEU[110] may also cause delays in proceedings where the EU is a respondent party. This may change in the future if a particular human rights issue leads to multiple cases against the EU.

Regardless of whether the non-contentious phase applies in a given case, Articles 37 and 39 ECHR apply and the EU can negotiate an FS with the applicant or propose a UD at all times. In the case of an FS, the ECtHR would have to examine whether the condition for approval of an FS has been met (i.e., “respect for human rights as defined in the Convention and the Protocols thereto”)[111]. Although little is known about how the ECtHR interprets this condition in the context of FSs[112], it would be contrary to this criterion to decide cases against the EU on the basis of an FS when a case raises a new ECHR question and when a case is relatively rare. After all, the Strasbourg judgments “serve not only to decide those cases brought before it but, more generally, to elucidate, safeguard and develop the rules instituted by the Convention, thereby contributing to the observance by the States of 361the engagements undertaken by them as Contracting Parties”[113]. The ECtHR added that the mission of the ECHR system, in addition to providing individual relief, is “to determine issues on public-policy grounds in the common interest, thereby raising the general standards of protection of human rights and extending human rights jurisprudence throughout the community of the Convention States”[114].

The same words of caution expressed in relation to FSs would apply to UDs. This is particularly so, given that one of the factors in determining whether respect for human rights requires the ECtHR to proceed with the examination of an application despite a UD is whether the issue raised in the application is comparable to issues already decided by the ECtHR[115]. If a case against the EU is a novelty, it is difficult to imagine that the ECtHR would accept a UD.

Nevertheless, the EU may find the idea of concluding an FS or adopting a UD attractive, given their advantages[116]. With regard to UDs, it should be reiterated that the EU would first have to negotiate an FS[117]. It would also be important for the EU, before considering the use of either procedure, to determine which body would draft the document[118] and which EU institutions can be bound to an FS or a UD. By way of illustration, states cannot always promise that domestic proceedings will be reopened in a UD, as this may ultimately be a matter for the judiciary[119]. Although the lack of competence of a particular institution “has no relevance before an international Court such as the ECtHR” because the state is a single entity under international law[120], it may have practical consequences for the applicant. In the context of the EU, for example, it would be difficult to imagine the EU being able to commit itself in an FS or a UD to amending primary EU law, as any amendment would have to be ratified by all member states[121]. Changing secondary law is not easy either: although the Commission, if it were the actor concluding an FS or a UD, can promise to initiate the amendment procedure, it cannot promise that the Council and the European Parliament will accept it[122]. Although the state agent representing a state before the ECtHR cannot make such promises either, keeping such promises in the 362context of the EU is arguably relatively complex due to the multiplicity of actors involved in the legislative process. Another important point for the EU to consider is who will be responsible for taking care of and monitoring the implementation of an FS or a UD. This is particularly important in the case of UDs, as the CM does not supervise their implementation[123].

3.2. The Co-respondent Mechanism

The co-respondent mechanism allows the EU or an EU member state to be joined as a party to a case even though the case was originally brought against only one of them or both of them, without identifying one of them as the co-respondent[124]. This mechanism was considered necessary because, after accession, a situation may arise “in which a legal act is enacted by one High Contracting Party and implemented by another”[125]. The addition of a co-respondent is therefore a way to “avoid gaps in participation, accountability and enforceability in the Convention system”[126]. In other words, it ensures that, even when an application is brought against a respondent who cannot actually remedy the violation, the application is still admissible[127]. The co-respondent mechanism only applies to cases that have been communicated[128].

The EU may become a co-respondent if it appears that the alleged violation calls into question the compatibility with the ECHR of primary or secondary EU law, “notably where that violation could have been avoided only by disregarding” an EU law obligation[129]. An EU member state may be joined as a co-respondent when the alleged violation calls into question the compatibility with the ECHR of primary EU law, again “notably where that violation could have been avoided only by disregarding an obligation” under that body of law[130]. In addition, where a case is brought 363against both the EU and one or more EU member states, the status of a respondent may be changed to that of a co-respondent if the aforementioned criteria are met[131].

A co-respondent is added at the invitation of the ECtHR or on the initiative of the potential co-respondent itself[132]. The EU has already announced that it will request to become a co-respondent if the above criteria are met[133]. Formally, the ECtHR takes the decision to add a co-respondent. However, it will take this decision if a “reasoned assessment” by the EU shows that the criteria are met[134]. To avoid any doubt that it is in fact the EU that decides, the Draft Explanatory Report states that the conclusion of the EU’s assessment “will be considered as determinative and authoritative”[135]. In the alternative scenario, if the ECtHR were to review whether the criteria are met, it would be “required to assess the rules of EU law governing the division of powers between the EU and its Member States as well as the criteria for the attribution of their acts or omissions” and such a review “would be liable to interfere with the division of powers between the EU and its Member States” and with the autonomy of EU law[136]. If the ECtHR finds a violation in a case with a co-respondent, it will hold the respondent and the co-respondent jointly responsible[137].

The remainder of this section discusses the circumstances in which FSs and UDs may be used after accession instead of a judgment (section 3.2.1). In section 3.2.2, I propose that FSs and UDs may play a role in facilitating the execution of a judgment that is adopted after the co-respondent mechanism has been applied. Admittedly, clarifying my proposal requires quite some elaboration on related topics before returning to the topic of FSs and UDs as such.

3.2.1. Friendly settlements and unilateral declarations instead of a judgment

For the same reasons as set out in section 3.1, there is reason to doubt whether FSs and UDs should be used in proceedings involving the EU when a case raises a novel issue (be it as a co-respondent or with a co-respondent) and whether a non-contentious phase should apply to cases where a co-respondent is added in this scenario.

Anyhow, if a UD or an FS is adopted in proceedings with a co-respondent, it is important to note that the Draft Explanatory Report provides that both the respondent and the co-respondent must agree to the document[138]. Although the requirement 364is understandable since they are both respondents, it could complicate matters if the interests of the respondent and the co-respondent do not align. This could be the case if they disagree about who is responsible for the alleged violation. This would mainly affect a UD, since a UD requires an acknowledgement of a violation, whereas an FS does not[139].

3.2.2. Possible role of friendly settlements and unilateral declaration in execution

As noted above, the ECtHR delivers a judgment in which the respondent and the co-respondent are held jointly responsible and, therefore without apportioning responsibility between them[140]. As a result, the applicant will be faced with the strange situation that it is clear that a violation has been committed, while it remains unclear who of the two respondents is responsible for the violation that the Court found or whether they are perhaps jointly responsible. Not only will such a judgment be difficult to explain and justify to the applicant, but it will also create difficulties for the execution process[141]. Each state party must execute a judgment finding a violation to which it is a party[142]. The CM supervises the execution process and completes its task by adopting a final resolution after determining that the respondent “has taken all the necessary measures to abide by the judgment”[143]. As long as there is no allocation of responsibility between the respondent and the co-respondent, it is impossible to take (or promise to take) execution measures and therefore impossible for the CM to adopt a final resolution. The question that arises is who should decide this matter. I will now turn to this question by discussing five different possible actors, including the role that FSs and UDs, I propose, can play in respect of the last and most feasible option[144].

365Since the 2023 Draft Accession Agreement provides for the ECtHR to hold the respondent and the co-respondent jointly responsible[145], the ECtHR does not seem to be an option. The background to this rule is Opinion 2/13, in which the CJEU made it abundantly clear that a decision by the ECtHR on the allocation of responsibility would “risk adversely affecting the division of powers between the EU and its Member States”[146]. Instead, such a decision “must be resolved solely in accordance with the relevant rules of EU law and be subject to review, if necessary”, by the CJEU, which has exclusive jurisdiction in such matters[147]. To some extent, the ECtHR may be able to circumvent the requirement in the 2023 Draft Accession Agreement by formally holding the respondent and the co-respondent jointly responsible in the operative provisions of its judgment (the part of the judgment that is legally binding), while shedding light on the appointment of responsibility in the preceding considerations. While such insights would be valuable, they would not change the requirement in the 2023 Draft Accession Agreement and would therefore not constitute a complete solution to the lack of appointment of responsibility.

The second potential actor is the CM, considering its supervisory task as outlined above. The question that arises, as Franklin and Tzevelekos point out, is whether the observation that “the ECtHR will not interfere with the EU’s interna corporis” “will also be equally the case when the [CM] will be monitoring the execution of judgments under the co-respondent mechanism”[148]. I find it hard to imagine that the CJEU would not allow the ECtHR to decide on the allocation of responsibility, but would have no problem with the CM doing so. After all, a final resolution of the CM can be regarded as a binding decision on the execution of a binding judgment and the CJEU’s exclusive jurisdiction applies where an “interpretation [of EU law] would be binding on the EU”[149]. Consequently, the CM is not a viable option either.

The third possibility are two actors together: the respondent and the co-respondent, who make a joint proposal to the CM. However, in Opinion 2/13, the CJEU stated that, even assuming “that a request for the apportionment of responsibility is based on an agreement between the co-respondent and the respondent, that in itself would not be sufficient to rule out any adverse effect on the autonomy of EU law”[150]. Consequently, although such a joint proposal may be made and could even prove to be indispensable in practice, it would alone not be a sufficient basis to ensures that the CJEU will not be distressed about the possible adverse effect on the 366autonomy of EU law after accession. In addition, it would not be possible for the CM to approve of the agreement in a final resolution or to base that resolution in part on the agreement, which would signal its approval of the agreement. As the CJEU stated in Opinion 2/13: to “permit the ECtHR to confirm any agreement that may exist between the EU and its Member States on the sharing of responsibility would be tantamount to allowing it to take the place of the Court of Justice in order to settle a question that falls within the latter’s exclusive jurisdiction”[151]. I propose that what applies to the ECtHR also applies to the CM, as argued above.

The fourth actor that could perhaps apportion responsibility is the Commission. As the CJEU explained in Opinion 2/13, a decision on the allocation of responsibility, “must be resolved solely in accordance with the relevant rules of EU law”[152]. From an institutional perspective, the Commission could be regarded as the institution per excellence for allocating responsibility in accordance with those rules, since it is the guardian of the treaties[153]. The CJEU also explained that it should be able to review the allocation of responsibility “if necessary”, given its exclusive jurisdiction in such matters[154]. The Commission’s decision on responsibility would presumably be subject to such review under Article 263 TFEU[155], the action for annulment. A member state may bring such an action against acts of the Commission[156] that intend “to produce legal effects vis-à-vis third parties”, inter alia for “infringement of the Treaties or of any rule of law relating to their application”[157]. The CJEU would, therefore, be able to review the Commission’s decision. Natural persons can bring such an action if the act is addressed to them[158]. It is unlikely that a Commission’s decision on the division of responsibility is addressed to the applicant. The addressee is more likely 367to be the ECtHR or the CM. Natural persons may also bring such an action if the act is of “direct and individual concern to them”[159]. As regards the requirement of direct concern, the CJEU has stated that “any act […] may, in principle, directly concern an individual and thus directly affect its legal situation, irrespective of whether it entails implementing measures”[160]. In particular, if the Commission were to decide on the question of compensation, the decision would be of direct concern. However, if this were not the case, and the question were to be resolved at a later stage (in an FS for example), it is questionable whether the decision would perhaps not be of direct concern. The Commission’s decision would likely be of individual concern to the applicant, since no one else is in their situation: the applicant in the ECtHR case that gave rise to the decision[161].

The involvement of the Commission has three possible disadvantages from the applicant’s perspective. This perspective has received little attention during the negotiations, which “focused primarily on balancing institutional interests, without sufficient consideration of the effect on individuals’ practical and effective access to justice”[162]. In addition to the disadvantages from the applicant’s perspective, from an institutional perspective, the CJEU may want to take responsibility for awarding compensation, rather than leaving it to the Commission or the parties in an FS. After all, the CJEU also has exclusive jurisdiction to award damages for non-contractual liability of EU institutions and bodies[163].

The first disadvantage from the applicant’s perspective has to do with the fact that the Commission is likely to be the actor representing the EU before the ECtHR, since it ensures “the Union’s external representation”[164]. Consequently, the Commission will be the actor arguing against a finding of a violation. In particular, the applicant could see a problem in entrusting one and the same institution with the task of arguing against a violation during contentious proceedings before the Court, and, then determine who is responsible for a violation after the Court has adopted a judgment that establishes joint responsibility. This is particularly concerning, given that the Commission could decide that it is not responsible, but only the other respondent. In the applicant’s view, this could risk create the impression that the Commission evades responsibility. Importantly, the Commission’s role would not be similar to that of governments who communicate to the CM the remedies they intend to implement to execute a judgment to which they are a party. This is because 368these governments do not decide on appointing responsibility and the Commission’s role, as discussed in this and the previous paragraph, would not be to suggest remedies, but rather to apportion responsibility. If the mixing of the Commission’s roles is indeed seen as too problematic, the CJEU could be asked to decide on the allocation of responsibility, the details of which are developed below. In this way, it can carefully safeguard the autonomy of EU law and its exclusive jurisdiction.

Second, it is not inconceivable that the Commission will be one of the impugned parties before the ECtHR, so not just representing the EU, but also being the EU institution that is allegedly (jointly) responsible for a violation. In this scenario, it would be particularly unfair in the eyes of the applicant for the Commission to decide on the allocation of responsibility; it would be answering this question as one of the parties responsible for the violation. In other words, it would be a “judge” in its own case.

The third disadvantage would only arise if the state, but not the applicant, could challenge the Commission’s decision before the CJEU under Article 263 TFEU, as discussed above. If this were to be the case, they would not have equal access to justice. This asymmetry cannot be remedied (to some extent) by allowing the applicant to intervene before the CJEU in a case between a member state and the Commission; this is not possible[165]. Such an asymmetry need not exist if the CJEU would be in charge in accordance with the proposal to amend the CJEU Statute set out below.

In short, the involvement of the CJEU would seem to be the best response to the concerns expressed in Opinion 2/13 and from the applicant’s perspective, although it would further extend the already lengthy proceedings. I propose that the allocation of responsibility should be resolved before the CM starts to supervise the execution of a judgment, as it will be difficult for the CM to start if this issue has not yet been resolved. In other words, I also propose that the co-respondent procedure requires a procedure for the post involvement of the CJEU. At this point, UDs and FSs become relevant again. The ECtHR can facilitate post involvement by issuing a judgment limited to the question of a violation, reserving the allocation of responsibility. This gives the CJEU the opportunity to resolve this issue before the CM starts supervising the execution of the judgment. The difficulty is whether the question of a violation and the allocation of responsibility can be neatly separated and, as was explained above, the ECtHR may say something about the latter in its reasoning (and not in the operative provisions of a judgment). However difficult this may be, the ECtHR may not be able to avoid separating these questions at least in the operative provisions, given Opinion 2/13 and in order to maintain its good relations with the CJEU –if it continues to care about this after accession at all[166].

369Once the CJEU has resolved the allocation of responsibility, a friendly settlement can be negotiated with the applicant based on the decision from Luxembourg. Subsequently, the ECtHR can issue a decision based on the FS, as is elaborated on below, and the CM supervises the judgment on the question of a violation and the FS dealing with the allocation of responsibility[167]. It is then for the CM, as in any other case, to establish whether the remedies proposed by the respondent(s) suffice to execute the judgment[168].

Arguably, it makes more sense to use a decision in which the ECtHR approves an FS than a separate judgment on the allocation of responsibility after the CJEU’s post involvement, as the ECtHR would have to rubber-stamp the CJEU’s decision. Adopting a judgment is less appropriate in such a scenario than the resolution of the case based on an FS; there is no room for actually judging the case. As was explained before[169], an FS can only be achieved if the applicant agrees. However, even when the respondents resort to a UD, the CM becomes involved, because it has to supervise the judgment finding a violation anyway and it could then take the UD into account.

This proposal would require the inclusion of a rule in the ECtHR Rules of Court stating that a judgment can only be given on the question of a violation when the co-respondent mechanism is applied and that the allocation of responsibility (and possibly that of Article 41 ECHR) are reserved in their entirety. Such a rule would be comparable to Rule 75(1), which provides that the ECtHR, if it finds a violation, may reserve the application of Article 41 ECHR in whole or in part when it is not ready for decision[170]. This proposal may conflict with the principle of the finality of judgments set out in Article 44 ECHR[171], and it could be argued that the proposal would therefore require an amendment to the ECHR. However, this does not need to be an insurmountable problem in practice since the Court has also assumed the power to revise its judgments, which is clearly contrary to the principle of finality. Yet, this power “is not provided for in the Convention, but was introduced by the Rules of Court”[172]. When the drafters of the Draft Accession Agreement prefer not to cause any legal uncertainty about compatibility with Article 44, the agreement 370would need to provide for an amendment to the ECHR[173]. On the part of the CM, this would require an amendment to its Rules for the supervision of the execution of ECHR judgments[174]. The current rules stipulate that when a judgment is transmitted to the CM, the case is inscribed on its agenda “without delay”[175]. If the co-respondent mechanism applies, the case should be entered on its agenda without delay once the CJEU has adopted its post-involvement decision and after the ECtHR has approved an FS (or a UD).

For its part, the EU would have to adopt internal rules to facilitate the involvement of the CJEU as soon as possible after the ECtHR had adopted a judgment. As the 2023 Draft Accession Agreement stipulates with regard to the prior involvement procedure: “The [EU] shall ensure that such assessment is made quickly so that the proceedings before the Court are not unduly delayed”[176]. The Draft Explanatory Report notes in this respect that “an accelerated procedure before the CJEU already exists and that the CJEU has been able to give rulings under that procedure within six to eight months”[177]. The urgent preliminary reference procedure (PPU) lasts even only about eight to ten weeks[178]. What Lock has noted in relation to the prior involvement procedure may also be relevant to the post involvement by the CJEU: “It is likely that that process will be modelled on the preliminary reference procedure and enacted via an amendment to the CJEU Statute”[179]. In order to ensure that all parties have a say in Luxembourg, the amendment should include the right of the applicant, the Commission and the member state to submit observations to the CJEU. In addition, it is of great importance that the CJEU decides swiftly, considering that the applicability of the co-respondent procedure already leads to delays.

One might ask why the ECtHR could not simply adopt a judgment and leave it to the EU to allocate responsibility, without the ECtHR being involved a second time to decide on an FS or a UD. The advantage of having an FS is that the execution of this document is formally supervised by the CM. In addition, by not only leaving the allocation of responsibility open in the judgment, but also by stating that the ECtHR will return to the matter, albeit only to rubber-stamp the CJEU’s decision, some pressure is put on the EU to address the matter in a timely manner.

3713.3. The Prior Involvement Procedure

When the EU is a co-respondent and when the CJEU has not yet assessed the compatibility of the relevant provision of EU law with the ECHR[180], the CJEU will be given “sufficient time” to make such an assessment[181]. More specifically, the CJEU will assess the EU legal basis for the act or omission complained of by the applicant, not the act or omission itself[182]. The CJEU can rule on both the validity and the interpretation “of a legal provision contained in acts of the EU institutions, bodies, offices or agencies, or on the interpretation of a provision of the TEU, the TFEU or of any other provision having the same legal value pursuant to those instruments”[183]. This prevents the ECtHR from deciding “a case on the basis of a wrong interpretation of EU law” and giving “its own original interpretation of EU law”, which would undermine the CJEU’s exclusive jurisdiction[184]. As in the case of the co-respondent mechanism, the EU decides whether the prior involvement of the CJEU is necessary[185]. However, the CJEU’s judgment which is the result of its prior involvement is not binding on the ECtHR[186].

As Callewaert and Lock have already suggested, if the CJEU concludes that the relevant provision violates fundamental rights, the parties could adopt an FS[187]. As was noted above, both respondent parties would have to conclude this document[188]. In this way, the proceedings before the ECtHR can be concluded relatively quickly[189]. The human rights condition[190] is unlikely to be an obstacle to the adoption of an FS. Unlike the FSs that the Registry routinely drafts in repetitive cases[191], an FS drafted after the CJEU has issued a judgment should contain an acknowledgement 372of a violation based on that judgment and, therefore, a payment that is not ex gratia in nature. If no action has been taken in response to the CJEU judgment at the time the FS is concluded, the FS should also include a commitment to amend the EU law provision that is in violation of a fundamental right, or at least a commitment to start the amendment process. If the applicant does not agree with the FS, the parties may adopt a UD containing comparable terms. Since the EU decides on prior involvement, and if a judgment of the CJEU finding a violation leads to the adoption of an FS, the case is kept away from the ECtHR. Consequently, the downside of this approach is that one of the ideas behind accession, namely to subject the EU to external scrutiny, is hardly achieved, as there is no real substantive review by the ECtHR, apart from checking that the human rights condition has been fulfilled.

Lock has suggested two alternative ways of closing a case where the CJEU has delivered a judgment finding a violation as a result of its prior involvement. First, the ECtHR “could find that the applicant has lost their victim status and declare the case inadmissible”[192]. As Lock also notes, “[a]part from a removal of the violation [loosing victim status] may also require the payment of compensation or similar”[193]. However, I would suggest that an FS is preferable to the option of an inadmissibility decision based on a loss of victim status for three reasons. First, an FS can be adopted even when the EU is still taking measures to remedy the violation found by the CJEU, which may take some time, whereas an inadmissibility decision can probably only be adopted once this remedy has been implemented. An FS is therefore relatively fast. Second, the question of compensation for the applicant can be dealt with in an FS. This cannot be done in a decision in which the ECtHR decides to strike out a case because the applicant has lost victim status. On the contrary, and as noted above, compensation is a prerequisite for such a decision. Moreover, the CJEU is also unlikely to award compensation in its judgment, because the applicant is not a party to the case and because the CJEU “will not assess the act or omission complained of by the applicant, but the EU legal basis for it”[194]. Third, the advantage of an FS is that the CM is involved in supervising its execution[195], whereas this is not the case when an inadmissibility decision is adopted.

Lock’s second proposal is that the ECtHR “may strike out the application if the conditions set out in Article 37 ECHR are met”[196]. Although he does not specify which of the three grounds for striking out an application on the basis of Article 37 ECHR would apply, he is probably referring to the second ground, which reads: “The 373matter has been resolved”[197]. In applying this ground, the Court applies the human rights condition, examines whether the circumstances complained of by the applicant still exist and whether the state has remedied the effects of a possible violation[198]. For the same three reasons given in relation to an inadmissibility on the basis of loss of victim status, I would argue that an FS is preferable to a decision based on the second ground of Article 37 ECHR.

4. Conclusion

This article has examined a specific procedural aspect of the EU’s participation in the ECHR proceedings following its accession to the ECHR: the role that FSs and UDs may play in cases involving EU law. Three scenarios were reviewed.

In the first scenario, the EU is the respondent. Some words of caution followed when discussing the potential role of FSs and UDs in this scenario when such a case raises a novel issue. If such documents were nevertheless to play a role in these circumstances, the EU would have to consider which body would be drafting the relevant document, which EU institutions could be bound by the content of the document, and who would be responsible for ensuring the implementation of the document.

In the second scenario, the EU and an EU member state are both respondents, one as the respondent, the other as the co-respondent. I suggested that the FS (or the UD) can play a role in this scenario in the following way: if the ECtHR finds a violation, it reserves apportioning responsibility (and possibly the question of Article 41 ECHR). A procedure for post involvement of the CJEU was then outlined. I explained that the CJEU is the institution that is best placed to apportion responsibility. Based on the CJEU’s decision, the (co-)respondents may negotiate an FS with the applicant or, alternatively, the (co-)respondents may adopt a UD.

In the third and final scenario, the CJEU is involved though the prior involvement procedure in a case where the EU is a co-respondent. Here, too, FSs or UDs can play a role in the sense that they can help to resolve the case quickly after the CJEU has established that a provision of EU law infringes a fundamental right. The document should include an acknowledgment of an ECHR violation and probably also a payment that is not ex gratia in nature. Depending on what action has already been taken by the EU to remedy the violation found by the CJEU, the document should include a commitment to amend the provision at the root of the violation.

[*] The author would like to thank Jasper Krommendijk and Vassilis Tzevelekos for their constructive comments on earlier versions of this article.

[1] 46+1 ad hoc Group, Final consolidated version of the draft accession instruments of 17 March 2023, 46+1(2023)36. This document contains the Report of the “46+1” Group to the CDDH, the text of the revised Draft Accession Agreement (2023 DAA), the Draft declaration by the European Union to be made at the time of signature of the Accession Agreement in Appendix 2 and the Draft Explanatory Report in Appendix 5. Gragl is “hopeful” that the 2023 DAA “will be able to overcome Luxembourg’s threshold set in Opinion 2/13”; see Paul Gragl, The New Draft Agreement on the EU Accession to the ECHR: Overcoming Luxembourg’s Threshold, ECHRLR 2025, [https://brill.com/view/journals/eclr/aop/article-10.1163-26663236-bja10099/article-10.1163-26663236-bja10099.xml], accessed 13 February 2025.

[2] Report of the “46+1” Group to the CDDH, §§ 7-8; Vassilis P. Tzevelekos, The EU’s Accession to the ECHR: The Future of the Revised Draft Accession Agreement and a Call to End the Bosphorus Doctrine, ECHRLR 2025. 5, [https://brill.com/view/journals/eclr/aop/article-10.1163-26663236-bja10120/article-10.1163-26663236-bja10120.xml], accessed 31 March 2025.

[3] Opinion 2/13, Accession of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms [2014], ECLI:EU:C:2014:2454.

[4] Report of the “46+1” Group to the CDDH, § 8.

[5] Jasper Krommendijk, One Step Closer After KS and KD: EU Accession to the ECHR, Review of European Administrative Law, 1 October 2024, [https://realaw.blog/2024/10/01/one-step-closer-after-ks-and-kd-eu-accession-to-the-echr-by-jasper-krommendijk/], accessed 11 February 2025. Cf. Lia Gobiet, The Final Episode of a (Never-Ending) Series? CFSP Damages Claims and the ECHR Accession, European Law Blog, 25 September 2024, [https://www.europeanlawblog.eu/pub/edrqzitg/release/2], accessed 11 February 2025. See also Tobias Lock, Implications of the Revised Draft EU Accession Agreement for the ECHR, ECHRLR 2025. 26 (in particular footnote 103), [https://brill.com/view/journals/eclr/aop/article-10.1163-26663236-bja10115/article-10.1163-26663236-bja10115.xml], accessed 13 February 2025; Tzevelekos (in 2), 8-9.

[6] Felix Ronkes Agerbeek, EU Accession to the European Convention on Human Rights: A New Hope, 9 European Papers 2024. 695, 713. The EU Commission made such a request on 25 July 2025 [decision reference C(2025)3950].

[7] Ibid., 696.

[8] Article 6(2) TEU.

[9] Section 2.3.

[10] They are mainly used in this stage of the proceedings, but can be used in any stage, see the introduction to section 2.1.

[11] Article 39 ECHR; Article 37(1)(c) ECHR.

[12] See sections 2.1 and 2.2.

[13] As far as the author is aware, the sources in No. 187 are the only ones mentioning the procedures (in passing) in the context of accession.

[14] Article 39(2) ECHR.

[15] Rule 62(2) of the Rules of Court.

[16] See section 2.3.

[17] Veronika Fikfak, Against settlement before the European Court of Human Rights, 20 ICON 2022. 942, 955.

[18] The European Court of Human Rights. Questions & Answers for Lawyers, CCBE 2023. 24, [https://www.echr.coe.int/documents/d/echr/q_a_lawyers_guide_echr_eng], accessed 13 February 2025.

[19] Article 39(3) ECHR.

[20] Article 39(4) ECHR.

[21] ECtHR, Analysis of Statistics 2024, January 2025, 11, [https://www.echr.coe.int/documents/d/echr/stats-analysis-2024-eng], accessed 19 May 2025. I.e. (1688+1375+2174+1718+1801+1164)/6.

[22] ECtHR, Analysis of Statistics 2013, January 2014, 4, [https://www.echr.coe.int/documents/d/echr/Stats_analysis_2013_ENG], accessed 19 May 2025; ECtHR, Analysis of Statistics 2023, January 2024, 10, [https://www.echr.coe.int/documents/d/echr/stats-analysis-2023-eng], accessed 19 May 2025. I.e. (1418+1696+1660+2006+1529+2185)/6.

[23] ECtHR (in 21) 10. I.e. (1102+1014+1163+1105+871+884)/6.

[24] Jessica Gavron, Strasbourg Court’s New Non-Contentious Phase – A Tax on Lawlessness?, Strasbourg Observers, 14 November 2019, [https://strasbourgobservers.com/2019/11/14/strasbourg-courts-new-non-contentious-phase-a-tax-on-lawlessness/], accessed 13 February 2025.

[25] ECtHR, Annual Report 2019, 2020, 14; ECtHR, Unilateral declarations: Policy and practice, July 2023, 2, [https://www.echr.coe.int/documents/d/echr/Unilateral_declarations_ENG], accessed 13 February 2025.

[26] Helen Keller/Magdalenca Forowicz/Lorenz Engi, Friendly Settlements Before the European Court of Human Rights (OUP 2010), 39.

[27] Fikfak (in 17), 957, 971; Gavron (in 24).

[28] Keller/Forowicz/Engi (in 26), 44, 45.

[29] See also Rule 62(3) of the Rules of Court.

[30] CCBE (in 18), 25.

[31] Lize R. Glas, The Theory, Potential and Practice of Procedural Dialogue in the European Convention on Human Rights System (Intersentia 2016), 281.

[32] Leo Zwaak/Yves Haeck/Clara Burbano Herrera, Procedure before the Court, in Pieter van Dijk/Fried van Hoof/Arjen van Rijn/Leo Zwaak (eds.), Theory and Practice of the European Convention on Human Rights5 (Intersentia 2018), 197; Keller/Forowicz/Engi (in 26), 39-40.

[33] Keller/Forowicz/Engi (in 26), 53-54.

[34] In part based on Glas (in 31), 276-278.

[35] EHRAC, EHRAC Guide. Frequently Asked Questions. Litigating a case before the European Court of Human Rights, 13, [https://ehrac.org.uk/wp-content/uploads/2021/09/EHRAC-Guide-to-Frequently-Asked-Questions-2.pdf], accessed 13 February 2025; Keller/Forowicz/Engi (in 26), 92; Glas (in 31), 277.

[36] EHRAC (in 35), 13.

[37] Keller/Forowicz/Engi (in 26), 92; EHRAC (in 35), 13; Gavron (in 24).

[38] Philip Leach, Taking a Case to the European Court of Human Rights4 (OUP 2017), 65.

[39] Glas (in 31), 277.

[40] Keller/Forowicz/Engi (in 26), 76.

[41] Article 46(1) ECHR.

[42] Leach (in 38), 65.

[43] Keller/Forowicz/Engi (in 26), 63-64; Leach (in 38), 65.

[44] Keller/Forowicz/Engi (in 26), 115.

[45] ECtHR (in 25), 1.

[46] ECtHR (in 25), 2.

[47] Lize R. Glas, Unilateral declarations and the European Court of Human Rights: Between efficiency and the interests of the applicant, 25 MJEC 2018. 607, 611, 613.

[48] Ibid., 621.

[49] Article 37(2) ECHR.

[50] Glas (in 47), 622.

[51] ECtHR (in 21), 11. I.e. (1551+397+624+490+470+403)/6.

[52] See in 23.

[53] ECtHR, Analysis of Statistics 2013, January 2014, 4, [https://www.echr.coe.int/documents/d/echr/Stats_analysis_2013_ENG], accessed 19 May 2025; ECtHR, Analysis of Statistics 2023, January 2024, 10, [https://www.echr.coe.int/documents/d/echr/stats-analysis-2023-eng], accessed 19 May 2025. I.e. (409+502+2970+1766+753+865)/6.

[54] This section is in part based on Glas (in 47), 614.

[55] CCBE (in 18), 24.

[56] Gavron (in 24).

[57] ECtHR (in 25), 2.

[58] Ibid., 3.

[59] E.g. Zavaros v. Cyprus, App. No. 7292/10 (ECtHR, 29 March 2016); Wilson v. the United Kingdom, App. No. 65084/1 (ECtHR, 21 June 2016); Ilnseher v. Germany, App. No. 10211/12 (ECtHR, 2 January 2017).

[60] Bayliss v. the United Kingdom, App. No. 440/10 (ECtHR, 10 June 2014); Black v. the United Kingdom, App. No. 23543/11 (ECtHR, 1 July 2014); Hill v. the United Kingdom, App. No. 22853/09 (ECtHR, 7 April 2015).

[61] E.g. Wiesman v. the Netherlands, App. No. 49111/08 (ECtHR, 4 November 2014); Sanadiradze v. Georgia, App. No. 64566/09 (ECtHR, 8 April 2015); Vlahovic v. Montenegro, App. No. 62444/10 (ECtHR, 22 November 2016).

[62] E.g. Smirnov and Others v. Ukraine, App. No. 38083/04 (ECtHR, 5 June 2012).

[63] See Glas (in 31), 290.

[64] E.g. Dochnal v. Poland, App. No. 31622/07 (ECtHR, 18 September 2012), § 69; ECtHR, Themeli v. Albania, App. No. 63756/09 (ECtHR, 15 January 2013), § 18; Maširević v. Serbia, App. No. 30671/08 (ECtHR, 11 February 2014), § 37.

[65] Lize R. Glas, Unilateral declarations and the European Court of Human Rights: Between efficiency and the interests of the applicant, 25 MJEC 2018. 607, 612.

[66] Rule 62A(1)(b) of the Rules of Court.

[67] Glas (in 47), 618; ECtHR (in 25), 3.

[68] Tomasso v. Italy, App. No. 43395/09 (ECtHR GC, 23 February 2017), § 135.

[69] Tahsin Acar v. Turkey, App. No. 26307/95 (ECtHR GC, 6 May 2003), § 76.

[70] Glas (in 47), 615.

[71] Rule 62(1)(a) of the Rules of Court.

[72] Rule 62(2) of the Rules of Court.

[73] CCBE (in 18), 2.

[74] Glas (in 47), 616.

[75] Committee of Ministers, 17th Annual Report, April 2024, 117.

[76] Rules 62A(1)(c) of the Rules of Court.

[77] The part on reasons for the state (not) to settle is based on Glas (in 31), 288-289.

[78] If the applicant accepts the UD, it becomes an FS.

[79] Glas (in 47), 625; Nino Jomarjidze/Philip Leach, What Future for Settlements and Undertakings in International Human Rights Law?, Strasbourg Observers, 15 April 2019, [https://strasbourgobservers.com/2019/04/15/what-future-for-settlements-and-undertakings-in-international-human-rights-resolution/], accessed 13 February 2025.

[80] Glas (in 31), 288.

[81] The declaration remains, however, subject to the Court’s approval. Besides that, as was explained above, the Registry’s proposal of a sum of money for a friendly settlement may be regarded as convenient by the state.

[82] Glas (in 31), 289.

[83] Glas (in 31), 289.

[84] Copenhagen Declaration, 13 April 2018, [https://www.echr.coe.int/documents/d/echr/Copenhagen_Declaration_ENG], accessed 13 February 2025, § 54(b). This was also asked at other conferences; see Lize R. Glas, From Interlaken to Copenhagen. What Has Become of the Proposals Aiming to Reform the Functioning of the European Court of Human Rights?, 20 HRLR 2020. 121, 132-133.

[85] Fikfak (in 17), 943, footnote 2.

[86] CDDH, Securing the long-term effectiveness of the supervisory mechanism of the European Convention on Human Rights: The Court’s action in 2018-2019, 2019, 25, 14 June 2019, § 25; ECtHR (in 25), 1.

[87] ECtHR, The European Court of Human Rights is launching a new case processing strategy, ECHR 092 (20121), 17 March 2021.

[88] ECtHR, “A Court that matters/Une Cour qui compte”, A strategy for more targeted and effective case-processing, 17 March 2021, 2, [https://www.echr.coe.int/documents/d/echr/Court_that_matters_ENG], accessed 13 February 2025. See for a critical discussion of this policy, Başak Çalı/Esra Demir-Gürsel, “A Court that Matters” to Whom and for Wat? Academic Freedom as a (Non-)Impact Case, Strasbourg Observers, 11 June 2021, [https://strasbourgobservers.com/2021/06/11/a-court-that-matters-to-whom-and-for-what-. academic-freedom-as-a-non-impact-case/], accessed 13 February 2025.

[89] Keller/Forowicz/Engi (in 26), 17. This is less so for UDs, considering the context in which they were developed and considering that one reason for the ECtHR not to accept a UD may be that a comparable issue has not already been determined by it in previous cases; see section 2.2.1.

[90] On 1 January 2019.

[91] Rule 54(2)(b) of the Rules of Court; ECtHR, Information to applicants: Procedure following communication of an application non-contentious phase, 30 July 2020, 1.

[92] CDDH (in 86), § 25.

[93] CDDH, Contribution of the CDDH to the evaluation provided for by the Interlaken Declaration, CM(2019)182-add, 4 December 2019, § 118.

[94] CDDH (in 86), § 25.

[95] CCBE (in 18), 24.

[96] ECtHR, ECHR is to test a new practice involving a dedicated non-contentious phase, ECHR 2018, 437, 18 December 2018.

[97] Gavron (in 24). However, as it noted in the same blog: “The Court has made bare ex gratia proposals with respect to the same Contracting State in a right to life case concerning domestic violence resulting in femicide and a number of state agent ill-treatment cases”. In addition, “The fact that a property case concerning confiscation of a tractor was not identified by the Court as suitable for a friendly settlement serves to underline the incoherence of the process”.

[98] CDDH (in 86), § 11.

[99] Gavron (in 24).

[100] CDDH (in 86), § 25.

[101] ECtHR, Applicants, [https://www.echr.coe.int/apply-to-the-court], accessed 13 February 2025. The ECtHR does not elaborate on when this would not be “appropriate”.

[102] Articles 37(1) and 39 ECHR.

[103] ECtHR (in 25), 2. This source concerns UDs; the author assumes that this also applies to FSs.

[104] See in 21, 23, 51, 53.

[105] See also Draft Explanatory Report, § 7.

[106] Draft Explanatory Report, § 7.

[107] Section 2.3.

[108] Section 2.3.

[109] See section 3.2.

[110] See section 3.3.

[111] Article 39(1) ECHR. See also section 2.2.1.

[112] Section 2.2.1.

[113] Rantsev v. Cyprus and Russia, App. No. 25965/04 (ECtHR, 7 January 2010), § 197.

[114] Ibid..

[115] Section 2.3.1.

[116] Section 2.2.1.

[117] Section 2.2.1.

[118] This would probably be the Commission, because it ensures the EU’s external representation; see in 164.

[119] Lorenzo Acconciamessa, Two Birds With One Stone? Governments’ Unilateral Declarations Before the ECtHR and the Reopening of Domestic Proceedings, 5 ECHRLR 2024. 339, 351.

[120] Ibid., 352.

[121] Article 48 TEU.

[122] Article 289 TFEU (ordinary legislative procedure).

[123] Introduction to section 2.2.

[124] Article 3(1) 2023 DAA. See for a more elaborate discussion of this mechanism, Demi-Lee Franklin/Vassilis P. Tzevelekos, The 2023 Draft Agreement on the EU Accession to the ECHR: Possible “Gaps” and “Cracks” in the Co-respondent Mechanism and the Implications for the Bosphorus Doctrine, 9 European Papers 2024. 745, 752-756; Gragl (in 1), 6-8; Jasper Krommendijk, EU Accession to the ECHR: Completing the Complete System of EU Remedies?, in Melani Fink (ed.), Redressing Fundamental Rights Violations by the EU. The Promise of the “Complete System of Remedies” (OUP 2024), 194-197; Lock (in 5), 8-13; Christos Giakoumopoulos/David Milner, Accession of the European Union to the European Convention on Human Rights. A View from Inside the Council of Europe, ECHRLR, 9, [https://brill.com/view/journals/eclr/aop/article-10.1163-26663236-bja10119/article-10.1163-26663236-bja10119.xml], accessed 31 March 2025.

[125] Draft Explanatory Report, § 46.

[126] Ibid., § 47.

[127] Krommendijk (in 124), 195.

[128] Draft Explanatory Report, § 59.

[129] Article 3(2) 2023 DAA. The “notably” raises a number of questions; see Franklin/Tzevelekos (in 124), 754.

[130] Article 3(3) 2023 DAA.

[131] Article 3(4) 2023 DAA.

[132] Article 3(5) 2023 DAA.

[133] Draft declaration by the European Union to be made at the time of signature of the Accession Agreement.

[134] Article 3(5) 2023 DAA.

[135] Draft Explanatory Report, § 61.

[136] Opinion 2/13 (in 3), §§ 224-225.

[137] Article 3(8) 2023 DAA.

[138] Draft Explanatory Report, §§ 69-70.

[139] Sections 2.1.1 and 2.2.1.

[140] Franklin/Tzevelekos (in 124), 751.

[141] Article 46(2) ECHR.

[142] Article 46(1) ECHR.

[143] Article 46(2) ECHR; CM, Rules of the Committee of Ministers for the supervision of the execution of judgments and of the terms of friendly settlements, CM/Del/Dec(2006)964/4.4-app4consolidated, 10 May 2006, Rule 17.

[144] Lock (in 5), 17, notes that the co-respondent mechanism has, from the applicant’s perspective, “the practically useful advantage of resulting in joint responsibility of both EU and the member state(s) concerned in case of a judgment finding a violation. This greatly enhances the chances of enforcement in two ways: first, the Council [sic] of Ministers […] will scrutinise compliance not only by the respondent, but also by the co-respondent. Second, Article 4(3) TEU places the EU and its member states under obligations of loyalty towards each other. This means that in case of a judgment finding a violation, they are not only obliged to compliance by virtue of the ECHR, but also by virtue of EU law, which is then enforceable before the EU courts”. Lock, however, does not address the complicating factor that the CM cannot determine the question of responsibility.

[145] Article 3(8) 2023 DAA.

[146] Opinion 2/13 (in 3), §§ 230-231.

[147] Ibid., § 234.

[148] Franklin/Tzevelekos (in 124), 753 (footnote 27).

[149] Tobias Lock, The European Court of Justice and International Courts (OUP 2015), 80 (emphasis author).

[150] Opinion 2/13 (in 3), § 234. See also Krommendijk (in 124), 196.

[151] Opinion 2/13 (in 3), § 234.

[152] Ibid., § 234.

[153] See Article 17(1) TEU.

[154] Opinion 2/13 (in 3), § 234.

[155] “The [CJEU] shall review the legality of […] acts of […] the Commission […] intended to produce legal effects vis-à-vis third parties. […] It shall for this purpose have jurisdiction in actions brought by a Member State, the European Parliament, the Council or the Commission on grounds of lack of competence, infringement of an essential procedural requirement, infringement of the Treaties or of any rule of law relating to their application, or misuse of powers. […] Any natural or legal person may, under the conditions laid down in the first and second paragraphs, institute proceedings against an act addressed to that person or which is of direct and individual concern to them, and against a regulatory act which is of direct concern to them and does not entail implementing measures. […]”.

[156] Such acts include “atypical decisions that may be contained in letters addressed to individuals and that are capable of affecting their legal situation”; see Bernhard Schima, Article 263 TFEU, in Manuel Kellerbauer/Marcus Klamert/Jonathan Tomkin (eds.), The Eu Treaties and the Charter of Fundamental Rights (OUP 2019), 1803.

[157] Article 263(1) TFEU.

[158] Article 264(4) TFEU.

[159] Article 263(4) TFEU.

[160] Case C-348/20 P, Nord Stream 2 AG, ECLI:EU:C:2022:548, § 74.

[161] Case 25-62, Plaumann, ECLI:EU:C:1963:17.

[162] CDDH Ad Hoc Negotiation Group (“46+1”) on the Accession of the EU to the ECHR, “Meeting Report”, 46+1(2022)R13, 13 May 2022, § 27 (paraphrasing Nuala Mole).

[163] Articles 268 and 340(2) TFEU.

[164] Article 17(1) TEU.

[165] Article 40 CJEU Statute.

[166] About their relationship post Opinion 2/13, see Rick Lawson, Atlas Shrugged: An Analysis of the ECtHR Case-Law Involving Issues of EU Law Since Opinion 2/13, 9 European Papers 2024. 647, 670-671. See about joint responsibility in the EU context, Melanie Fink/Clara Rauchegger/Joyce de Coninck, The Action for Damages as a Fundamental Rights Remedy, in Melani Fink (ed.), Redressing Fundamental Rights Violations by the EU. The Promise of the “Complete System of Remedies” (OUP 2024), 59.

[167] Articles 39(4) and 46(2) ECHR.

[168] Article 46(2) ECHR.

[169] Introduction to section 2.1.

[170] In addition, one can imagine a comparable rule as Rule 75(2) of the Rules of Court.

[171] See also Article 42 ECHR.

[172] Pardaro v. France (revision), App. No. 13416/87 (ECtHR, 10 October 1996), § 21. See Rule 80 of the Rules of Court.

[173] The fact that the Draft Accession Agreement has already been submitted to the CJEU for its opinion may make this, again from a practical perspective, not a very appealing solution.

[174] CM (in 143).

[175] CM Rule 3.

[176] Article 3(7) 2023 DAA.

[177] Draft Explanatory Report, § 79.

[178] Fair Trials, Preliminary Reference Toolkit, 8 March 2021, 8, [https://www.fairtrials.org/app/uploads/2022/01/CJEU-preliminary-reference-Toolkit-July.pdf], accessed 10 April 2025.

[179] Lock (in 5), 14.

[180] Because a national court failed to make a request for a preliminary ruling, see Draft Explanatory Report, §§ 74-75.

[181] Article 3(7) 2023 DAA. See for a more elaborate discussion, Gragl (in 1), 8-10; Krommendijk (in 124), 197-198; Lock (in 5), 13-14; Giakoumopoulos/Milner (in 124), 9-10. The co-respondent mechanism is not necessary when the EU is the respondent, because, in that scenario, applicants wishing to apply to the ECtHR must refer the matter first to the EU Courts; see Johan Callewaert, The Accession of the European Union to the European Convention on Human Rights (Council of Europe 2014), 56.

[182] Draft Explanatory Report, § 77.

[183] Ibid..

[184] Krommendijk (in 124), 197.

[185] Draft Explanatory Report, § 76.

[186] Ibid., § 78. See also Article 3(7) 2023 DAA (“The provisions of this paragraph shall not affect the powers of the Court, including to make a final determination of whether there has been a violation of the Convention”).

[187] Callewaert (in 181), 78; Lock (in 5), 14.

[188] Introduction to section 2.1.

[189] Section 2.1.2.

[190] Section 2.1.1.

[191] Section 2.3.

[192] Lock (in 5), 14.

[193] Ibid., 14, footnote 51.

[194] Draft Explanatory Report, § 77.

[195] Article 39(4) ECHR.

[196] Lock (in 5), 14.

[197] Article 37(1)(b) ECHR.

[198] Pisano v. Italy, App. No. 36732/97 (ECtHR GC, 24 October 2002), § 42; Glas (in 31), 178.