Co-respondent Mechanism and Proper Administration of Justice

Vassilis Pergantis[*]

1. Introduction

The European Union’s (EU) accession to the European Convention on Human Rights (ECHR, the Convention) constitutes a decades-old project that culminated in the adoption of the Draft Accession Instruments in April 2023 (hereafter 2023 DAA).[1] This outcome emerged after protracted negotiations that were interrupted in 2014 by Opinion 2/13 of the Court of Justice of the European Union (CJEU),[2] which rejected the previous, 2013 DAA.[3] The revised draft is premised on the same principles underpinning the 2013 draft: preservation of the Convention system as far as possible and of the applicants’ rights, equal footing of the parties to the Convention, respect of the competence allocation between EU and its member States, consideration of the EU’s special nature and preservation of the autonomous interpretation of EU law.[4] Additionally, the 2023 draft had to account for the objections raised by the CJEU in the aforementioned opinion, which relied heavily on the principle of autonomy of the EU’s legal order.

On that basis, the present study attempts to explore the procedural challenges raised by the introduction of the co-respondent mechanism, which constitutes the main tool for determining responsibility in cases involving the EU and its member States, as it will be explained. First, the choices made regarding attribution and co-respondentship in the 2013 DAA and the modifications ensued under the 2023 DAA will be presented. Then, the paper will focus on the impact of those modifications for the applicant before the European Court of Human Rights (ECtHR, the Strasbourg Court) and the ECtHR itself. Finally, the tools in view of countering the (unintended) consequences of the provisions, especially if the EU and its member States abuse the granted privileges or act in bad faith will be explored. The conclusion highlights the remaining blind spots and how they could be tackled procedurally in the most beneficial for the applicants and the ECtHR way.

2. The Draft Accession Agreement and the Responsibility Question

In international law a State is found responsible when internationally wrongful conduct (act or omission), namely a violation of an international obligation incumbent on a State or an international organization, is attributed to that State or international organization.[5] In the case of the ECHR, the violations under scrutiny relate to obligations stemming from the Convention and its Protocols (and the DAA, which should be considered an integral part of the Convention[6]); hence, the main issue is that of attribution of the wrongful conduct.

On this element, the 2023 DAA – in agreement with the 2013 one – adheres to an organic/factual criterion for the attribution of the violations. Specifically, Article 1(3) renders the EU accountable for the acts and omissions of its institutions, bodies, agencies etc., while Article 1(4) stipulates that acts and omissions of State organs and those acting on their behalf are attributable to the State. This is consonant in broad lines with the ILC rules, which follow the same logic.[7] Nevertheless, such simple bifurcation of the attribution rules[8] is impossible in the case of the EU. The shifting boundaries of EU versus member States’ competences and the paradigm of executive federalism, whereupon EU member States act as the executive/implementing arm of EU decisions, make the question of attribution more complex.[9]

For this reason, the 2023 DAA provides EU’s joint responsibility for EU member States’ acts – and vice versa – under Articles 1(4), last sentence and 3(8) of the 2023 DAA. The blending of attribution of conduct and attribution of responsibility[10] models is evident in these cases, where member States act under strict obligations stemming from the EU, namely where they do not enjoy any discretion under EU law regarding the required course of action. Such example constitutes the Bosphorus case,[11] where Ireland was acting under strict obligations stemming from a(n) (then) EC Regulation, which was transposing a UN Security Council Resolution to the EU legal order. In such cases, the State performing the illegal act is not competent to remedy the breach. Instead, it is the supranational organisation (namely the EU), which adopted the aforementioned measure, that can amend it. Hence, the EU should in these cases become co-respondent in proceedings before the Strasbourg Court.

Additionally, the co-respondent mechanism should be equally applicable when decisions adopted are treated as the aggregation of member States acts rather than as an EU act because of the intergovernmental character of this part of EU activities (for instance, in the field of Common Foreign and Security Policy (CFSP)) or when an EU act is premised on a provision of primary EU law that is allegedly non-compliant to the Convention. Such a scenario was materialised in the Connolly case, where the ECtHR dealt with a complaint against the procedure before the CJEU. No State action could be discerned.[12] There, the co-respondent mechanism should normally be activated, leading to the joint responsibility of the EU (via the attribution of conduct paradigm) and its member States (via the attribution of responsibility paradigm).

Consequently, the full appreciation of the EU’s institutional workings can be achieved only by introducing the co-respondent mechanism.[13] This mechanism is equally crucial for the preservation of the effectiveness of the application before the Strasbourg Court, as it allows the expansion of the respondents so as to include also the correct one. Moreover, it ensures that the Court will not impinge upon the autonomy of the EU by meddling in the allocation of competences between the EU and its member States.[14] The mechanism’s implementing details, however, drew criticism by the CJEU leading to its modification under the 2023 DAA. Before commenting on these changes, it is imperative to briefly present the initial plan and the criticism thereof.

3. The Initial and Revamped Form of the Co-respondent Mechanism

In its initial iteration in the 2013 DAA, the co-respondent mechanism provided for its activation either if a contracting party accepted an invitation by the ECtHR to become a co-respondent or by decision of the Court itself upon a party request on the basis of a plausibility assessment on whether the conditions were fulfilled, the main condition being that the application challenges an EU law provision’s compatibility with the ECHR.[15] The ECJ found fault with this stipulation, since it arguably impinged upon the EU’s autonomy, as it allowed the ECtHR to assess the division of powers between the EU and its member States and, on the basis of the assessment, accept the request of the party to become co-respondent.[16] In other words, such discretion by the Strasbourg Court could not be easily reconciled with the autonomy of the EU legal order.[17]

These complaints were taken into account during the revamped negotiations. The idea was to let the EU assess applicable EU law and activate the co-respondent mechanism accordingly, while the ECtHR continued to adjudge on all other aspects of a case. Ultimately, the Draft Explanatory Report to the 2023 DAA attempts an untenable compromise by stipulating that while the EU assessment on the fulfilment of the conditions is determinative and authoritative, the ECtHR remains “master of its own proceedings” in that it retains discretion on all other aspects of the procedure and the case, in general.[18]

Consequently, there is no obligation to join as co-respondent incumbent upon the EU or its member States, though a unilateral draft declaration is appended to the 2023 DAA[19] stating that the EU will request to become co-respondent if the conditions are fulfilled. Whereas no such declaration is made by the EU member States for the opposite scenario (i.e. when an application is addressed to the EU but member States are the ones capable of remedying the possible violation of the ECHR), the Draft Explanatory Report, as an authentic interpretation of the agreement,[20] and the principle of loyal co-operation might be employed in order to impose on them too the same obligation to join proceedings as co-respondent(s).[21]

Moreover, the EU’s assessment had to be complemented by the requirement for the applicant’s views to be heard. Initially, the applicant’s involvement was projected to precede EU’s assessment, giving the respondent the ability to fully reply to the former’s arguments.[22] Yet, this sequence was abandoned when the EU delegation complained that the proposal resembled a process of judicial review.[23] As a result, the current state of affairs provides that the applicant’s views will be sought after the issuance of EU’s reasoned assessment, whereupon the EU will enjoy full discretion whether to reply or not.[24]

The same observations can be made regarding the termination of the co-respondent mechanism. Specifically, the possibility of termination of the co-respondent mechanism is upgraded in the 2023 DAA from the Explanatory Report to a specific provision.[25] With it, comes a revamping of the content: while in 2013 the decision on the termination rested upon the ECtHR and could be reached even without the prior joint intervention of the co-respondents, if the conditions for co-respondentship were no longer met, in the 2023 DAA such a decision is premised on the determinative and authoritative reasoned assessment of the EU. The assessment should take into account whether a co-respondent is neither responsible of – nor capable of remedying – the violation and the Court should afterwards first hear the applicant and give to the EU the opportunity to reconsider its assessment, before proceeding with its decision.[26] In other words, the ECtHR cedes the last word to the EU and simply validates the latter’s assessment, while any contrary views expressed by all the other parties to the proceedings are communicated to the EU, which can decide to not act upon them.[27]

Finally, the revamped DAA revisits the question of joint responsibility on the basis of comments made by the CJEU in the Opinion 2/13. More particularly, the CJEU had found fault with the option – stipulated in the 2013 DAA – of the Strasbourg Court to end joint responsibility on the basis of reasons provided by the respondent and the co-respondent and after having heard the applicant.[28] Such optionality might have endangered the autonomy of the EU legal order; hence, the revamped agreement effaces the Court’s power to reject joint responsibility.[29]

All in all, the amendments in the 2023 DAA turn the co-respondent mechanism into an exercise of self-judgment, like a revolving door allowing the EU and its member States to enter and exit the mechanism at whim.[30] This development raises serious risks for the procedure before the ECtHR. First, it runs counter to the principles that should have informed the negotiations for the EU accession to the Convention. Secondly, it impinges upon the procedural guarantees enshrined in the ECHR and further elaborated by the Strasbourg Court. Finally, it undermines the judicial function of the ECtHR. In the next part, those challenges will be briefly presented before turning to various arguments that attempt to override these effects.

4. A Procedural Critique of the Recast Co-respondent Mechanism

As one can easily perceive, the amended co-respondent mechanism is at tension with the basic principles underpinning EU accession to the ECHR. Specifically, it was declared from the beginning that the EU should accede to the Convention on an equal footing to the other contracting parties and that “proceedings by non-member States and individual applications [should be] correctly addressed to member States and/or the EU as appropriate”. Moreover, it was stipulated that accession should not take place at the expense of the applicant’s rights.[31] None of that is, however, ensured under the 2023 DAA.

First of all, the 2023 DAA represents an example where a system of objective adjudication is restricted by a parallel mechanism of self-judgment.[32] More particularly, by allowing the EU and its member States, which constitute the respondent side in an application before the ECtHR, to decide on who will remain as respondent, the mechanism becomes conditioned on the subjective considerations of a party to the dispute that might at one point decide to act in bad faith.[33] This state of affairs is all the more problematic, since it deprives the Strasbourg court of a core aspect of its judicial function, in the sense of not being able to determine to whom the act should be attributed and who has legal standing.[34] This is so, despite the assurances in the Draft Explanatory Report that the reasoned assessment will have no bearing on the merits of the application.[35] Only when the application is addressed to both the EU and its member State(s) is the above danger bypassed, since the Court can then decide itself whether to notify the case, so that the EU can assess if the co-respondent mechanism is applicable.

Nevertheless, some of these shortcomings might be remedied, if the Court adopts an expansive view on its powers.[36] For instance, under the current construction of the co-respondent mechanism one may wonder whether the Court could review a reasoned assessment for lack of reasoning or, further on, whether it is possible for the Court to declare an application ratione personae inadmissible after the termination of co-respondentship in case the EU decides to put to the front a respondent that is not the perpetrator of the breach and cannot remedy it. Moreover, the question is raised whether it is possible for the ECtHR to intervene in case the EU does not decide on the co-respondent question “in a timely manner”, as the 2023 DAA demands.

Additionally, in case of termination of the co-respondent mechanisms, it is stipulated that this cannot take place “for any other reasons other than the fact that the material conditions for applying the mechanism no longer apply”.[37] Does this formulation grants the ECtHR some margin of discretion to proceed to a review of the outer limits of the EU’s assessment in case of abuse of rights? One might be tempted to accept this possibility, especially because the Draft Explanatory Report linguistically distinguishes co-respondent initiation from termination, where it speaks of an ECtHR’s decision, which is not the terminology applied in the case of initiation.[38]

Surely, the ECtHR needs to remain wary of the EU legal order’s autonomy and there is no doubt that the Strasbourg Court is unwilling to enmesh itself in issues of EU law.[39] However, the above control of the outer limits of the EU’s reasoning might be necessary in order to keep intact its judicial function under the ECHR. Such a scenario, however, raises further procedural questions: when will the Strasbourg Court proceed to this review of the outer limits of EU’s discretion? At the merits stage or when receiving the reasoned assessment by providing for a sort-of admissibility review of the assessment? What kind of decision will be issued after this review, and would separate and dissenting opinions be allowed? All these issues remain outstanding and might prejudge the degree to which the judicial powers of the ECtHR will be impinged upon by the DAA and its implementation.

Second, the 2023 DAA circumscribes crucially the applicants’ rights, creating a two-tier system of applicants. All in all, the accession undoubtedly offers great benefits for applicants: it closes the accountability gaps – especially in Bosphorus- and Connolly-type of applications; it contributes – in case the co-respondent mechanism is used properly – to a more appropriate distribution of responsibility between the EU and its member State(s) – so that the violation of the applicants’ rights under the ECHR can be remedied more effectively; it ensures greater consistency in the jurisprudence of the ECtHR and the CJEU; and tightens ECHR affiliation for those EU member States that appear to be diverging from the Strasbourg court’s case-law.[40]

Nevertheless, the 2023 DAA constitutes a step backward in respect of the applicants’ procedural position before the ECtHR. The fact that the applicant does not have – for the time being – any ability to present its comments before the EU issues its reasoned assessment on co-respondentship initiation and, crucially, on its termination, is worrisome. No adjustment should be expected on this aspect after the issuance of the EU’s internal rules thereon, since it was the EU itself which insisted on shifting the applicant’s reply after the EU reasoned assessment and on rendering its response thereto discretionary.[41]

This outcome of the negotiations serves as a preview on the nature of the intra-EU procedures that must complement the co-respondent mechanism. Specifically, the internal mechanism for adopting the EU reasoned assessment on the activation and termination of co-respondentship has not been revealed yet, so one can only speculate on its content. It has been suggested, for example, that, while internally the CJEU will probably be granted the competence to issue an order by a three- or five-judge chamber regarding the said reasoned assessment, in practice the assessment will be provided by the Commission, probably with the support of its Legal Service, since the Commission “represents the Union externally”.[42] The drawing of the internal procedure is not without legal repercussions. Whether the Luxembourg Court or the Commission is given the power to issue the reasoned assessment might prejudice the possibility of an intra-EU judicial challenge to the assessment. In other words, that choice might be crucial on how far the procedural rights of the applicant will be circumscribed or not and whether the applicant can be compensated procedurally at the level of the EU legal order.

In any case, it is to be noted that such internal rules do not constitute a lex specialis, which binds non-EU member States that are contracting parties to the ECHR. As it was argued elsewhere, special rules can be deemed lex specialis and bind third States if the latter have consented to them[43], which has not happened in the case at hand since the 2023 DAA makes no clear reference to the EU internal rules that will supplement it.[44]

Third, the above analysis raises valid questions about the compatibility of the 2023 DAA provisions on the co-respondent mechanism with the current Convention system and international human rights law, in general. Whereas it is tempting to challenge from the outset the legality of the agreement by arguing that it denies applicants an effective right of access to (international) justice[45], it will be argued that the best chance to tweak the agreement for the benefit of applicants will be presented in case the co-respondent mechanism is abusively used by the EU and its member States.

To begin with, any amendment to the ECHR, such as the one put forward on the basis of the DAA, is considered in conformity with the Convention, as long as it is ratified by the contracting parties and enters into force in accordance with the provisions of the treaty. Yet, a certain unease can be detected in those cases, where the amendment further restricts the rights of applicants. In the past, the introduction of the “significant disadvantage” admissibility criterion[46] by Protocol 14 to the ECHR led to serious objections in relation to the integrity of the right to individual application. It was argued, for instance, that this admissibility criterion dramatically undermined the right of individual petition,[47] or that it sat “uncomfortably with the principle of access of individuals to international justice”.[48] Yet, no one ever suggested that it was incompatible with the Convention itself; the opposite was obviously true, even if it was deemed problematic regarding individual access to the Convention organs.[49]

This can be confirmed by reference to the 1969 Vienna Convention on the Law of Treaties (VCLT) and its rules on treaty amendment,[50] which are applicable in the case at hand, since the Convention does not encompass a stipulation regarding its amendment.[51] In the case of the 2023 DAA, it explicitly stipulates (Article 11(3)) that it will enter into force upon ratification by all Contracting Parties to the Convention and the EU. Consequently, no third actors are required to consent for the amendment to be effective, even if the latter circumscribes their rights. Article 37 VCLT further lends support to this argument, because it allows for the revocation (or, a fortiori, amendment) of third State rights provided by a treaty without that State’s consent, unless “it is established that the right was intended not to be revocable or subject to modification without the consent of the third State”.[52] This is all the more so for the rights of third parties beyond States – such as the applicants’ right to individual petition under the ECHR – as the VCLT does not extend the protective ambit of the relevant proviso to the rights of other parties.[53] Consequently, in the case at hand, it cannot be supported that the consent of third parties is required for the amendment under the 2023 DAA to take effect.

It is another issue altogether, however, whether further rules of international law might set an obstacle for the said amendment reducing the procedural rights of natural and legal persons before the Strasbourg Court. Two different avenues can be explored thereto. First, one might argue that the right of access to international justice is a human right and hence, subject to the principle of non-retrogression.[54] This is a rather complicated argument to make, because the said principle has been employed in relation to economic, social and cultural rights,[55] while in the case of civil and political rights any restrictions should pass the proportionality and necessity tests. However, procedural rights are commonly shared in both categories of rights, and one could contend that such retrogression regarding the applicants’ rights should be avoided at all costs.

Second, one could claim that the human right of access to international justice (in casu, the right of individual petition) cannot be eradicated or circumscribed because it constitutes a vested/acquired right bestowed upon individuals. This line of argumentation, however, has not gained traction under international human rights law,[56] and might even be considered prejudicial for human rights, since the theory of vested rights accepts that upon compensation the contested right is lost.[57] Consequently, it can be reasoned that if the right to individual petition before international human rights tribunals and quasi-judicial bodies has not acquired the nature of a jus cogens norm, States can contractually circumscribe it.

Under these circumstances, a final line of defence against radically restricting the applicants’ right of individual petition before the ECtHR on the basis of the EU accession to the ECHR relates to a possible bad faith application of the co-respondent mechanism by the EU and its member States. Though such a scenario remains rather theoretical at the time being, it cannot be outrightly excluded.[58] In this case, the last sentence of Article 34 of the ECHR, which provides that “[t]he High Contracting Parties undertake not to hinder in any way the effective exercise of [the right to individual petition]”, is of outmost importance. More particularly, any attempt of the EU to abuse its discretion under the 2023 DAA regarding the reasoned assessment for the activation and the termination of the co-respondent mechanism might lead the ECtHR to find that the right to individual petition has been violated, as it has already done in the past with regard to States that set obstacles to the exercise of the aforementioned right.[59]

5. Conclusion

After a long period of reflection, the EU and the Council of Europe are once again at the edge of finalising the details for the EU accession to the ECHR. While the opinion of the CJEU is eagerly awaited, the procedural details on that accession are equally important and might even influence the opinion of the Luxembourg Court. This is particularly relevant in the case of the co-respondent mechanism, which has been amended during the renewed negotiation. Under the 2023 DAA, the EU is granted broad discretion on when to initiate and terminate the co-respondent mechanism, while the applicant and the ECtHR are rather reduced to passive spectators thereof.

It is argued in this paper that this state of affairs is not satisfactory on multiple fronts. First, by empowering the EU to decide on co-respondentship, the 2023 DAA introduces an element of self-judgment in an otherwise objective system of judicial control. This risks usurping some of the judicial powers of the Strasbourg Court and it remains to be seen whether the ECtHR will be able to retain some control of the reasoned assessment of the EU regarding the co-respondent mechanism. Second, the procedural rights of the applicant might be endangered, because under the 2023 DAA the respondent can determine the dimensions of the trial and influence the efficacy of the execution. In other words, a bad faith respondent might leave the applicant without an effective remedy and thus, deny the smooth and swift execution of a judgment by the ECtHR. This means that applicant and respondent are not anymore equal and that the applicant might be deprived of its right of access to international justice.

These shortcomings raise a bigger issue, that of the DAA’s compatibility with the Convention and general international law. Whereas the idea of the DAA violating the Convention is a non-starter, it is submitted that the Convention can place a check on abusive uses of discretion by EU in the framework of the co-respondent mechanism on the basis of Article 34 ECHR on the right to individual petition. Moreover, general international law highlights the still inadequate nature of the rules on the law of treaties, since it provides for the revocation of the rights of third parties (such as individuals) without their consent.

Under these circumstances, the procedural iteration of the co-respondent mechanisms, whether it pertains to the EU’s internal rules for its intra-EU implementation or to the procedures before the ECtHR has become very crucial. This paper attempts to shed light to some of those issues, but a series of questions remain open: can one raise objections regarding the implementation of the co-respondent mechanism by the EU before the Strasbourg Court? Would such objections pertain to the admissibility/procedural stage or the substance of the case? Can a case be brought before the ECtHR solely on grounds of a deficient application of the 2023 DAA? Is it possible to request an advisory opinion by the ECtHR thereon? These are only some issues that must be answered, together with the points raised above in this contribution.

[*] Assistant Professor of International Law, Faculty of Law, Aristotle University of Thessaloniki.

[1] “Interim Report to the Committee of Ministers, for information, on the negotiations on the accession of the European Union to the European Convention on Human Rights, including the revised draft accession instruments in appendix”, CCDH(2023)R_EXTRA, ADDENDUM, 4 April 2023 [hereafter 2023 DAA].

[2] ECJ, Opinion 2/13, EU:C:2014:2454, 18 December 2024.

[3] “Fifth Negotiation Meeting Between the CDDH Ad Hoc Negotiation Group and the European Commission on the Accession of the European Union to the European Convention on Human Rights” (10 June 2013) 47+1(2013)008rev2 [hereafter 2013 DAA].

[4] “Draft Council Decision authorising the Commission to negotiate the Accession Agreement of the European Union to the European Convention for the protection of Human Rights and Fundamental Freedoms (ECHR)”, Doc. 10602/10, 3 June 2010, Annex II, para. 1(a)-(e); “Draft Explanatory Report to the Agreement on the Accession of the European Union to the Convention for the Protection of Human Rights and Fundamental Freedoms”, 2023 DAA, note 1, para. 7.

[5] ‘Responsibility of States for Internationally Wrongful Acts, with Commentaries’ [2001] ILCYb, vol. II/2, 31 (Article 2); ‘Draft Articles on the Responsibility of International Organizations, with Commentaries’ [2011] ILCYb, vol. II/2, 46 (Article 4).

[6] Article 1(2) 2023 DAA, note 1.

[7] J. Crawford, State Responsibility: The General Part (CUP, 2013) 124-126; B. Montejo, “The Notion of ‘Effective Control’ Under the Articles on the Responsibility of International Organizations” in M. Ragazzi (ed.) Responsibility of International Organizations: Essays in Memory of Sir Ian Brownlie (Martinus Nijhoff, 2013) 389.

[8] It should be noted that it is not altogether clear whether attribution to the EU for acts or omissions of EU organs should take place under Article 1(3) or, a contrario, from Article 1(4), which seems to be suggested in the Draft Explanatory Report to the 2023 DAA, note 1, para. 27.

[9] V. Pergantis, S. Øby Johansen, “The EU Accession to the ECHR and the Responsibility Question: Between a Rock and a Hard Place” in N. Levrat et al. (eds) The EU and Its Member States’ Joint Participation in International Agreements (Hart, 2022) 231, 236-237.

[10] Stian Øby Johansen, “Dual Attribution of Conduct to both an International Organisation and a Member State” (2019) 6 Oslo Law Review 178, 181-182.

[11] ECtHR, Bosphorus Airways v Ireland [GC], no 45036/98 (2005).

[12] ECtHR, Bernard Connolly v 15 EC Member States, no 73274/01 (2008).

[13] See G. Gaja, “The ‘Co-respondent Mechanisms’ According to the Draft Agreement for the Accession of the EU to the ECHR” in V. Kosta, N. Skoutaris, V.P. Tzevelekos (eds) The EU Accession to the ECHR (Hart, 2014) 341.

[14] T. Lock, “EU Accession to the ECHR” in S. Peers et al. (eds) The EU Charter of Fundamental Rights: A Commentary (Hart, 20222) 1873, 1880.

[15] Article 3(2) and (5), 2013 DAA, note 3.

[16] Opinion 2/13, note 2, paras. 224-225.

[17] Cf. P. Gragl, “The Reasonableness of Jealousy: Opinion 2/13 and EU Accession to the ECHR” (2015) European Yearbook on Human Rights 27, 43; and F. Benoît-Rohmer, «L’adhésion à la Convention européenne des Droits de l’ Homme, un travail de Pénelope?» (2015) 51 Revue trimestrielle de droit européen 593, 597.

[18] Draft Explanatory Report, 2023 DAA, note 1, para. 61.

[19] “Draft Declaration by the European Union to Be Made at the Time of Signature of the Accession Agreement”, 2023 DAA, note 1, Appendix 2.

[20] Draft Explanatory Report, 2023 DAA, note 1, para. 62.

[21] T. Lock, “Implications of the Revised Draft EU Accession Agreement for the ECHR” (2025) 6 European Convention on Human Rights Law Review 65, 77-80.

[22] 7th Meeting Report, 47+1(2020)R7, 2 November 2020, paras. 6 and 19; Discussion paper for agenda items 4 (‘Basket 1’) and 5 (‘Basket 2’ and Article 53 ECHR, 47+1(2021)5, 15 January 2021, p. 7.

[23] 47+1(2021)16, 24 November 2021, para. 5.

[24] Draft Explanatory Report, 2023 DAA, note 1, para. 63.

[25] Cf. “Final Report to the CDDH”, Fifth Negotiation Meeting between the CDDH ad hoc Negotiation Group and the European Commission on the Accession of the European Union to the European Convention on Human Rights, 47+1(2013)008rev2, Appendix V (Draft explanatory report to the Agreement on the Accession of the European Union to the Convention for the Protection of Human Rights and Fundamental Freedoms), para. 59 and Article 3(6) 2023 DAA, note 1.

[26] Draft Explanatory Report, 2023 DAA, note 1, paras. 66-67.

[27] It has been noted that, under this procedure, the Court’s role is reduced to that of a communicator between the parties (11th Meeting Report, 47+1(2021)R11, 8 October 2021, paras. 24 and 27) or of a notary (V. Pergantis, “IO Internal Rules as Lex Specialis under the ARIO? The Example of the EU Accession to the ECHR” in A. Berkes, R. Collins, R. Deplano (eds) Reassessing the Articles on the Responsibility of International Organizations: From Theory to Practice (Elgar, 2024) 210, 219). For a more positive view, see J.P. Jacqué, «La réouverture des négociations sur l’adhésion de l’Union à la Convention européenne des Droits de l’homme: clap final ou tapisserie de Pénélope?» (2021/125) RTDH 525, 532–534.

[28] Opinion 2/13, note 2, paras. 229-34.

[29] See the proposal by X. Groussot, E. Stavefeldt, “Accession of the EU to the ECHR: A Legally Complex Situation” in J. Nergelius, E. Kristoffersson (eds) Human Rights in Contemporary European Law (Hart, 2015) 7, 23.

[30] For the identification of the risk that the Union might issue reasoned assessments on the basis of self-interest, see T. Lock, Implications, note 21, 80.

[31] Protocol No 8 Relating to Article 6(2) of the TEU on the Accession of the Union to the ECHR [2012] OJ C326/1, Art 1(b); Council of the European Union, ‘Council Decision authorising the Commission to negotiate the Accession Agreement of the European Union to the ECHR’ (Doc No 10817/10, 8 June 2010, declassified on 10 June 2015) Annex ii, paras. 3(e) and 10(a); Presidency of the Council of the European Union, ‘Accession of the EU to the ECHR’ (Doc No 12349/19, 20 September 2019) para. 5(a).

[32] For this argument, see V. Pergantis, “The Road (to Hell) not Taken in the EU Accession to the ECHR: Automatic Attribution Clauses & Tertiary International Responsibility Rules as a Nostrum to the CFSP Roadblock?” (2025) 22 International Organizations Law Review (forthcoming).

[33] For this scenario, see D.-L. Franklin, V.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” (2024) 9 European Papers 745, 761-763.

[34] V. Pergantis, IO Internal Rules, note 27, 224-226.

[35] Draft Explanatory Report, 2023 DAA, note 1, para. 64.

[36] For the view that ECtHR’s remaining control over the activation and termination of the co-respondent mechanism is only theoretical, see J. Polakiewicz, I. Suominen-Picht, “Now or Never – One Year after the Closure of the Second Negotiation Round for the EU’s Accession to the ECHR: Will the Agreement Reached Suffice to Make Accession (Finally) a Reality?” (2025) 6 European Convention on Human Rights Law Review 102, 107.

[37] Draft Explanatory Report, 2023 DAA, note 1, para. 67.

[38] Ibid., para. 66.

[39] C. Giakoumopoulos, D. Milner, “Accession of the European Union to the European Convention on Human Rights: A View from Inside the Council of Europe” (2025) 6 European Convention on Human Rights Law Review 15, 24.

[40] Lock, Implications, note 21, 97-98.

[41] Pergantis, IO Internal Rules, note 27, 218-219.

[42] P. Gragl, “The New Draft Agreement on the EU Accession to the ECHR: Overcoming Luxembourg’s Threshold” (2025) 6 European Convention on Human Rights Law Review 39, 45-46.

[43] J. d’Aspremont, “A European Law of International Responsibility? The Articles on the Responsibility of International Organizations and the European Union” in V. Kosta, N. Skoutaris, V. Tzevelekos (eds) The EU Accession to the ECHR (Hart, 2014) 75, 84.

[44] Pergantis, IO Internal Rules, note 27, 220-222.

[45] See the comprehensive analysis on the right’s effectiveness in J. Gerards, L. Glas, “Access to Justice in the European Convention on Human Rights System” (2017) 35 Netherlands Quarterly of Human Rights 11, passim.

[46] See Article 35(3)(b): “The Court shall declare inadmissible any individual application submitted under Article 34 if it considers that: […] (b) the applicant has not suffered a significant disadvantage, unless respect for human rights as defined in the Convention and the Protocols thereto requires an examination of the application on the merits”.

[47] “Guaranteeing the long-term effectiveness of the European Court of Human Rights”, Final report containing proposals of the Steering Committee for Human Rights (CDDH), CM(2003)55, 4 April 2003, Proposal B.4, fn 2.

[48] N. Vogiatzis, The Admissibility Criterion under Article 35(3)(b) ECHR: A ‘Significant Disadvantage’ to Human Rights Protection?” (2016) 65 ICLQ 185, 187.

[49] Ibid., 192; and P. Leach, “Access to the European Court of Human Rights – From a Legal Entitlement to a Lottery?” (2006) 27 Human Rights Law Journal 11, 18-20.

[50] Articles 39 and 40 Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331.

[51] J. Klabbers, “Treaties, Amendment and Revision” MPEPIL [December 2006] para. 2.

[52] See the analysis by F. Lavopa, L. Barreiros, M. Victoria Bruno, “How to Kill a BIT and not Die Trying: Legal and Political Challenges of Denouncing or Renegotiating Bilateral Investment Treaties” (2013) 16 Journal of International Economic Law 869, 889.

[53] A. Gattini, “Jurisdiction Ratione Temporis in International Investment Arbitration” (2017) 16 The Law and Practice of International Courts and Tribunals 139, 156–158.

[54] B. Warwick, “Concepts of Non-retrogression in Economic and Social Rights” (2025) 47 Human Rights Quarterly 115.

[55] CESCR, General Comment 3: The Nature of States Parties Obligations (Art 2(1)), UN Doc E/1991/23 (14 December 1990) para. 9.

[56] V. Pergantis, The Paradigm of State Consent in the Law of Treaties (Elgar, 2017) 210-212. Contra HRCttee, Continuity of Obligations, General Comment 26, UN Doc. CCPR/C/21/Rev.1/Add.8/Rev.1, 12 August 1997, para. 4; ICJ, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections [1996] ICJ Rep 595, 652 (Judge Weeramantry).

[57] B. Stern, «La succession d’Etats» (1996) 262 Recueil des cours 9–437, 309.

[58] See V. Pergantis, “Shades of Trust: The ECtHR, the ECJ and their Evolving Relationship in Light of the 2023 Revised Draft Accession Agreement” (2024) 9 European Papers 801, 811.

[59] See, indicatively, ECtHR, Shtukaturov v Russia, no 44009/05 (2008); ECtHR, Shirkhanyan v. Armenia, no 54547/16 (2022).