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As it is well known the long-lasting process[1] of the European Union’s (EU) accession to the European Convention on Human Rights[2] (ECHR or Convention) has been halted by the Court of Justice of the EU’s (CJEU) Opinion 2/13[3] (Opinion) on the incompatibility with EU law of accession instruments (Draft Accession Agreement – further: DAA).[4] The Opinion has been welcomed with a “great disappointment” both at the European Court of Human Rights (ECtHR), as expressed inter alia by its then President Dean Spielmann,[5] but also by human rights practitioners and academia.[6] Some of the commentators referred to it as to a “bombshell”[7] or as to a “clear and present danger to human rights protection” in Europe.[8] Other critics were a bit more nuanced and were pointing out to some mitigating circumstances.[9]

The Opinion seemed to have created a hard to overcome deadlock. Nevertheless, as of late, five years after the Opinion had been launched, the issue of accession has resurfaced in the EU agenda.[10] The initiative has been welcomed by the Council of Europe (CoE).[11] On June 22nd 2020, the first informal meeting of the Steering Committee for Human Rights (CDDH) ad hoc negotiation group (“47+1 Group”) resuming the negotiations took place virtually. Negotiations will formally continue with the sixth negotiation meeting of the Group, which has been tentatively planned for September 29th to October 2nd 2020 in Strasbourg.[12] At the moment, however, due to the COVID-19 situation, which already led to the postponing of the process, but even more importantly in the light of how turbulent and time demanding the whole process turned out to be in previous stages, the accession seems not to be very likely to happen in the nearest future.

Thanks to Opinion 2/13, we have had a chance to get to know in detail the standpoint of the CJEU on the matter. At the same time, we have had a limited opportunity to get to know anything from its counterpart–the ECtHR. Back in 2011 both the Presidents of the ECtHR and the CJEU issued an aimed at enhancing the accession process, but limited in scope joint communication.[13] In 2014, as mentioned above, the then President of the ECtHR expressed his disappointment with the Opinion and pointed out the primary victims of non-accession: “those citizens whom this opinion […] deprives of the right to have acts of the European Union subjected to the same external scrutiny as regards respect for human rights as that which applies to each Member State”.[14] In the Annual Report from 2019, the then-President of the ECtHR Linos-Alexandre Sicilianos welcomed the relaunch of the procedure for the accession as “one of the outstanding events of 2019.”[15] One may thus ask if maybe some more elaborate and detailed intervention on the part of the ECtHR might be beneficial in order to shape the accession process in a balanced way, so that it responds well not only to the EU law peculiarities but also to the specificity of the Convention system. Maybe the ECtHR might also be able to put the drafters’ attention to the goals behind the accession and to the fact that they should not be undermined by the terms of the accession. Perhaps the ECtHR might attempt at setting some boundaries for future negotiations when it comes to concessions towards EU law demanded by the CJEU. Finally, maybe the ECtHR might even try to convince the CJEU to reconsider its intransigent position. We should bear in mind that the Luxembourg court may have a chance to assess also the revised accession instruments in the future.

This paper will take up a question whether there exists such a possibility. Particularly it will focus on the question whether the Convention system provides for an appropriate procedure. The paper will not engage into a discussion on how the contentious issues should be addressed by the ECtHR, but will focus on answering whether it at all may have a chance to address them in the current legal setting through advisory procedures with which the ECHR system is equipped. The text will argue that even if both the Articles 47-49 of the Convention advisory procedure as well as the Protocol 16 to the Convention (Protocol 16 or Protocol)[16] advisory procedure for the sake of their function and scope could not be applied to directly, holistically and systematically tackle Opinion 2/13, then at least the latter could provide a forum to do that, even if that forum were limited only to some of the issues covered by the CJEU’s opinion and they could be addressed only in an indirect way. While the mechanism has been designed with completely different purpose, some of the features of the Protocol 16 advisory procedure may even seem to incite such a use, especially in the context of the increasingly turbulent relations between the CJEU and the EU Member States’ highest courts and tribunals in the field of fundamental rights.

I. Can the ECtHR take a stand and tackle the Opinion 2/13: Advisory Opinion from the ECtHR for a change?

Even though the Opinion 2/13 is indeed highly debatable, it is probably true that “a blanket dismissal of the Court’s [CJEU] concerns would […] be throwing out the baby with the bathwater.”[17] Also the then President of the Parliamentary Assembly of the Council of Europe (PACE) Anne Brasseur seemed to agree when she, just after the Opinion had been issued, called “on the negotiators to carefully study this opinion, and immediately set to work to overcome the legal hurdles identified by the Court.”[18] On the other hand, renegotiations leading to fully incorporating to the revised or to the brand new accession agreement all the CJEU’s demands might not serve well when it comes to fulfilling the goals behind accession.[19] Accession in a full “compliance with the CJEU’s judgment would not provide effective external control of the EU’s actions”,[20] which hence would be counterproductive. A certain balance between the peculiarities of the EU legal order and the specificity of the Convention system is necessary. Perhaps then a voice from the ECtHR could help in achieving the necessary for meeting the CJEU’s demands while remaining feasible from the Strasbourg perspective compromise.

Having a direct opportunity to tackle Opinion 2/13 could enable the ECtHR to, primo, try to show which of the CJEU’s concerns are, according to the ECtHR, ill-funded or addressing irrelevant or already resolved problems, either of which could be solved by the EU internally, without the necessity to renegotiate the DAA (like potentially the Article 53 conundrum, the mutual trust conundrum or the issue of Protocol 16). This could mobilize the EU to tackle those problems by itself. Secundo, the ECtHR could, if it found it appropriate, promote such kinds of solutions to the CJEU’s concerns, which might be achievable on the grounds of the existing law and the current DAA through its consistent with EU law peculiarities application (like the inadmissibility of interstate disputes connected with EU law between the EU Member States in front of the ECtHR, ensuring that in the co-respondent mechanism the ECtHR assessment of admissibility would not extend to interpreting EU law or ensuring that in the prior-involvement procedure only EU institutions would be competent to rule on whether the CJEU has already dealt with a certain issue or not). Knowing that the ECtHR is willing to cooperate could help to dispel the CJEU’s concerns. Tertio, the ECtHR could help to distill from Opinion 2/13 those issues which may indeed demand renegotiations but at the same time it could set up boundaries aimed at not undermining the Convention system and the ECtHR scrutiny capacity (like when it comes to the issue of Common Foreign and Security Policy (CFSP)).[21]

Somehow reassuring might be the letter from former Commission President Jean-Claude Juncker and Vice-President Frans Timmermans requesting the resumption of negotiations but limiting the requested amendments to the DAA “only to what is strictly necessary to address the objections raised by the [CJEU].”[22] The current EU renegotiation agenda seems, however, quite well to reflect the CJEU's perspective.[23] That being the case, hearing from the ECtHR’s might be particularly pertinent. Nota bene: possible responses to the CJEU’s concerns of all the mentioned above kinds have already been to a great extent put forward in scholarly work concerning the Opinion.[24] It is not the aim of this paper to revisit or even sum up this discussion.[25] A clear statement on those issues from Strasbourg could, however, play an important role in reaffirming that such solutions exist and that they are achievable as well as that the ECtHR might be willing to cooperate in order to achieve them. When it especially comes to the group of problems, which could be solved by consistent with EU law application of the Convention after accession, a reassurance about the ECtHR’s willingness to cooperate could make a difference. The question, however, arises whether there exists a procedure in which the ECtHR could do that.

The idea to request an advisory opinion (AO) from the ECtHR for the first time has been put forward by Steve Peers already just after Opinion 2/13 had been adopted. As he argued, in the light of very far-reaching demands by the CJEU,

if those amendments were indeed […] incompatible with the ECHR, there would be no point wasting further time and effort on negotiating them. So it would be best for the Committee of Ministers to invoke Article 47 ECHR, which allows it to ask the ECtHR to give an advisory opinion on the interpretation of the Convention or its protocols.[26]

As he, however, himself admitted the AO procedure as known to the ECHR system (Articles 47-49 ECHR) did not seem to extend to the draft accession agreement.[27] At the moment the Articles 47-49 ECHR advisory procedure is not the only one available in the Strasbourg system. Since a few years, the system is also equipped with advisory procedure set up by Protocol 16 to the Convention.

A. ECtHR Advisory Opinion under Articles 47-49 ECHR

Before going into legal details, one should notice that on a political level it would seem to be very difficult to find a sufficient incentive to launch Article 47 AO procedure. That is the case, even despite the fact that the majority necessary for launching the procedure in the Committee of Ministers of the Council of Europe (CoM) after Protocol 11[28] incorporated the procedure into the Convention is not any longer 2/3 but ordinary. It is important to note that the political initiative for a request for AO does not have to come from within the CoM itself. The initiative to lodge the first ever request came from PACE. In 2001 PACE adopted a Recommendation for the CoM to request the Court to give an opinion concerning coexistence of the Convention on Human Rights and Fundamental Freedoms of the Commonwealth of Independent States (CIS Convention) and the ECHR.[29] Nevertheless, there seems to be no political will in the CoE for such a move and that is the only competent body to actually launch the procedure. As Andrew Drzemczewski noted in 2015: “Most informed commentators have argued that […] the Council of Europe and its member states have – at present – no reason to take part in discussion on this [accession] matter.”[30] The situation has not since significantly changed. All in all, it is the EU that is obliged by its own law to join the Convention and it is the EU institution–the CJEU–that singlehandedly aborted the process. As Jörg Polakiewicz sums up, “[it] is certainly not for the Council of Europe to tell the EU how it should settle its internal problems.”[31] The negotiations, if we bear in mind the difficulties encountered in the process of reaching the DAA and sometimes the at best obstructionist attitude of some states[32] do not promise an easy success. Some parties to the Convention, especially those which are not members to the EU, might for various reasons not be willing to facilitate this process in any way.

From the legal point of view, the situation is even more straightforward. The scope of Opinions under Articles 47-49 of the Convention is very limited. It has been noticed already during the travaux préparatoires on Protocol 2 to the Convention,[33] which introduced the procedure in 1963, that it should serve to clarify on the grounds of the Convention mostly procedural issues, falling outside the scope of adversarial proceedings (interstates disputes and individual applications) in front of the Court. Examples of issues falling under the scope of AOs to be given at that time covered controversies regarding the election of judges or the duties of the Secretary General of the Council of Europe under the Convention and the procedure of the CoM in exercising its role in the execution of judgments.[34] The mentioned above question concerning coexistence of the CIS Convention and the ECHR, in which the ECtHR did not find itself competent to give the advisory opinion, gave the Court an opportunity to issue quite an elaborate decision on its competence to give AOs under Articles 47-49. The ECtHR confirmed the very limited scope of the procedure. Accordingly, the procedure has been applied so far only twice in the context of questions relating to the election of judges.[35]

As under Articles 47-49 of the Convention can be issued only on legal questions concerning the interpretation of the Convention and the Protocols thereto (Article 47(1) of the Convention) and opinions shall not deal with any question relating to the content or scope of the rights or freedoms defined in Section I of the Convention and the Protocols thereto, or with any other question which the Court or the CoM might have to consider in consequence of any such proceedings as could be instituted in accordance with the Convention (Article 47(2) of the Convention). Meanwhile, many of the CJEU concerns relate either to the accession instruments or EU law, which remain outside of the scope of Article 47(1). When they relate to the Convention and the way it could be applied after accession or the way it would be modified by the DAA, they all fall outside of the Article 47(2) scope, as they all could be considered in proceedings under Articles 33 and 34 of the Convention. The ECtHR has been very strict when it comes to Article 47(2) criterion in the past.[36] Nothing seems to indicate that change from this approach could be possible or desirable.[37] Therefore, even if there was a political will in the CoM to issue a request for an AO under Article 47 of the Convention in which the ECtHR were to address Opinion 2/13, such a request would have to be struck down by the Court as inadmissible.

B. ECtHR Advisory Opinion under Protocol 16

The CJEU does not only try to protect its position in relation to the ECtHR. It also tends to expand its influence, especially in the field of human rights, in relation to the EU Member States’ constitutional and other apex courts and tribunals. It does so by promoting the wide scope of application[38] of the EU fundamental rights under the EU Charter of Fundamental Rights (Charter)[39] as well as through the character of the EU standard of protection within this scope, which it promotes in combination with principles of primacy, unity and effectiveness of EU law.[40] That tendency does not remain unquestioned nor unopposed by the highest courts and tribunals of the EU Member States.[41] Perhaps then, it is the EU Member States’ highest courts and tribunals, who might be particularly inclined to challenge the CJEU’s position also by giving the ECtHR an opportunity to respond to Opinion 2/13 in which the CJEU openly confirmed its position on the matters that are controversial also in relations between the Member States’ courts and the CJEU.[42] The recent reform of the Convention system led to entry into force (on 1 August 2018) of Protocol 16, which enables the apex courts and tribunals of the parties to the Convention and to the Protocol to request advisory opinions from the ECtHR. Admittedly, due to the way in which the mechanism is designed, this procedure seems not to make the possibility of the ECtHR to issue its opinion directly on Opinion 2/13 much more plausible than it is under Article 47 of the Convention.

The Protocol has been introduced in the process of a reform of the Strasbourg human rights protection mechanism[43] suffering from case overload.[44] Protocol 16 was considered as another step in the process of the reform of the Convention system. The goal behind the Protocol was clearly not the one to provide a platform for the ECtHR to tackle problems of such a kind as expressed in Opinion 2/13, but to tackle the case-flow hurdle by enhancing domestic implementation of the Convention.[45] As it was possible to expect,[46] so far the procedure has not become very popular. Until now, the ECtHR has delivered two opinions under Protocol 16.[47] Only one of the two requests came from the EU Member State and none of the cases concerned the EU or its law.

The aim behind introduction of the AO procedure under Protocol 16 is well expressed in the scope of the AOs, which the highest courts and tribunals of parties to the Convention can request from the ECtHR. First of all, the AOs under the Protocol are limited only to questions of principle relating to the interpretation or application of rights and freedoms defined in the Convention or the protocols thereto (Article 1(1) of the Protocol). At first glance, it may seem that the Protocol 16 AOs cover what has been left outside the scope of Articles 47-49 of the Convention AOs. That is, however, not the case. The scope of the AOs under Protocol 16 covers only questions of principle and not all questions relating to interpretation or application of the Convention rights and freedoms. Second of all, it concerns only rights and freedoms defined in Section I of the Convention and Protocols thereto and not any other kind of regulations in any other kind of document, including the DAA or, all the more, EU law. That leaves the DAA and concerning it issues–addressed in Opinion 2/13–outside the scope of the procedure.

Even if the DAA and accession instruments were to be considered as at least partially modifying the Convention and Protocols in a way that could affect questions of principle relating to interpretation of the Convention rights and freedoms, the AOs under the Protocol are not aimed to deal with contrived or hypothetical problems.[48] The requesting court or tribunal may seek an advisory opinion only in the context of a case pending before it (Article 1(2) of the Protocol). The Court has already used a chance to confirm that it “infers from Article 1 §§ 1 and 2 of Protocol 16 that the opinions it delivers under this Protocol must be confined to points that are directly connected to the proceedings pending at domestic level.”[49] Since the DAA is not in force and the Union did not join the Convention, all the problems relating to the accession instruments would have a hypothetical character, hence would be outside the scope of Protocol 16 procedure. That also excludes the Protocol 16 advisory procedure as a method to directly, openly and systematically tackle Opinion 2/13.

Having said that, it seems that the procedure still could be used to tackle at least some of the issues risen by the CJEU in Opinion 2/13 but only in an indirect way. Already before the Opinion and before the DAA, the ECtHR has been addressing issues concerning the EU in cases against the EU Member States, when they were acting under EU law. The ECtHR developed in its jurisprudence a rather deferential approach to the EU and its law, which was oriented around the so-called Bosphorus[50] doctrine and presumption of equivalent protection.[51] After the Opinion the situation did not change; on the contrary, the ECtHR and the CJEU quite naturally continued to shape their relationship as they did before - mostly through case law.[52] Already after the Opinion, in the Avotiņš case,[53] the ECtHR upheld the Bosphorus presumption of equivalent protection. It, however, made it clear that the presumption should not be taken for granted, but is rebuttable.[54] The ECtHR has also continued to hold EU Member States responsible for the way in which they apply EU law when they are left with some discretion in doing it[55] (which already before the Opinion provided some difficulties for the CJEU to square with EU law)[56] as well as for the way in which they deploy the EU fundamental rights scrutiny mechanisms, especially when it comes to referring for preliminary judgment to the CJEU.[57] Nota bene: regarding the latter, the ECtHR’s demands under Article 6 of the Convention outgrow what the Member States are bound to do by EU law when it comes to dealing with the parties to the case requests for referrals.[58] When it comes to the mutual trust issue, the recent years have brought a significant shift in the CJEU approach and led to a revolution, labelled by some as “horizontal Solange.”[59] In a nutshell, the CJEU allowed Member States to rely on some exceptions from the mutual trust aimed at fundamental rights protection.[60] The revolution has been brought by a strong pressure from the EU Member States and their constitutional courts but also by the aforementioned Strasbourg jurisprudence.[61]

The ECtHR has also already used an opportunity to address the Opinion in its case law. For example, the landmark Avotiņš judgment was not only a confirmation of the Bosphorus doctrine, but also a long-awaited reaction to Opinion 2/13. The Opinion was explicitly addressed in the judgment. It was invoked in the section on "Relevant European Union and international law materials"[62] as well as referred to in several other places[63] in a rather polemic way.[64] The Court did not, however, approach it systematically and holistically. It focused on issues of general significance, which the Opinion touched upon, but which are indeed significant for fundamental rights protection in Europe regardless of accession, also in the context of relations between the EU and its Member States but especially in the light of the obligations of the latter with which they are bound as parties to the ECHR. I mean here especially the issue of mutual trust and, less explicitly, the problem of Article 53 of the Charter.[65] These are probably the two most controversial issues in relations between the CJEU and the Member States’ courts.

If touching upon those issues was possible for the ECtHR through case law, it could also be possible through advisory opinions under Protocol 16. It is rather unquestioned that both the issues may raise questions of principle relating to interpretation of the Convention rights and freedoms. The Member States’ courts might seek pre-emptive clarification of their duties under the Convention while they are applying EU law, not to be later challenged in the individual complaint procedure.[66] They might also be tempted to find a way to use Protocol 16 as a way to release the tension that is building up while the EU accession to the Convention is not taking place: “why should domestic supreme courts have to accept indefinitely to be subject of external scrutiny [by the ECtHR], including when they apply EU law, if the [CJEU] should indefinitely be allowed to avoid it?”[67] The requesting courts would have to remember though that they could not simply seek confirmation of what the ECtHR has already cleared out. The already resolved issues seem to fall outside the scope of the advisory procedure.[68] It is, however, possible to try to further develop the ECtHR’s doctrine and apply what it had previously ascertained to new challenges, which may emerge in the future in relation to the mutual trust principle or perhaps also to the issue of Article 53 in the context of the Convention rights protection. Some characteristics of the Protocol 16 advisory procedure may even be considered as encouraging to use it to that end.

First of all, the advisory opinions under Protocol 16 are not obligatory (Article 1(1) of the Protocol), so the highest courts and tribunals may request for them, when they find it appropriate, but they are not obliged to do so. More than that, the opinions are not binding (Article 5 of the Protocol), so it is up to the requesting court whether to implement the opinion or not as well as how to implement them in a particular case. That may lead to what can be called the “ownership” effect on the side of domestic courts and tribunals. One aspect of the effect might be an increased willingness of the courts to request for and follow the opinions.[69] The effect may, however, have yet another dimension. It might encourage the domestic courts to raise problematic questions concerning also their relations with the CJEU in the field of fundamental rights in which they could seek support–even if only indirect–from the ECtHR. The voluntary and nonbinding character of the opinions would give the domestic courts and tribunals much more field for manoeuvre as to how use the ECtHR’s opinion and to what extent apply it in a certain case or not. Even if their motives behind seeking for an advisory opinion from the ECtHR would be pragmatic in that sense, still, it could give a chance to the ECtHR to take a stand on some of the contentious issues.

The nonbinding character of the Protocol 16 opinions might as well have an effect on the ECtHR’s activity within the frames of the procedure. The ECtHR, knowing that the opinions will not be binding, might be more inclined to come to perhaps a bit more far-reaching or controversial conclusions than it would in ordinary proceedings.[70] At the end of the day, it will be the responsibility of the requesting court to implement the opinion in particular case or not or to apply it only to certain extent, so it will it be its responsibility to for example enter into a conflict with the CJEU on the controversial issues and to support itself with the ECtHR’s opinion, or to find a way to apply the ECtHR’s opinion in a nonconflictual way or not to apply it at all. The opinions could thus be a sort of a training ground for the ECtHR to test new concepts and approaches as well as their reception.

We also have to remember that, even if not binding, the opinions by the ECtHR under Protocol 16 constitute a part of the ECtHR’s case law of the highest possible status–questions of principle settled by the highest authority of the Court, which is the Grand Chamber. That significantly increases the “orientation” or the quasi-precedential effect of the ECtHR’s opinions.[71] The opinions, even if not applied in a given case by the requesting courts, or applied only partially, would still build up the Court's jurisprudence and would be followed by the ECtHR in cases to come also in the adversarial proceedings in front of the Court. Even if the ECtHR’s opinion would not be immediately followed in the proceedings in the context of which it was issued, there would also still exist a possibility for it to be followed by another domestic court in a similar case without requesting for a new opinion.

The Protocol 16 procedure might serve the ECtHR as well to address some of the issues contained in the Opinion in a deferential towards the EU way, while still clarifying some of the aspects of the relations between EU law and the Convention, also by rejecting the request for an opinion under Protocol 16. The dialogical character of the procedure is reflected in the obligation to give reasons at every stage of the procedure, including when the ECtHR refuses to issue an opinion.[72] That also gives the ECtHR a chance to clarify what falls outside of the competence of the Strasbourg Court and in what kind of issues the ECtHR does not have an ambition to interfere with EU law. Of course, the scope of the ECtHR’s competences would change with the accession. Still, even if only obiter dictum, some general principles of the ECtHR’s deference applicable also for the future could be expressed in decisions over rejecting the requests for an AO under Protocol 16.

It needs to be clear that the Protocol 16 advisory procedure, if at all, can be only of a very limited utility to the goal of tackling Opinion 2/13 and the CJEU’s concerns. It could serve to that end only indirectly and only regarding issues of general importance related to Convention rights protection which may resurface in the current legal setting and which have not yet been settled by the ECtHR in its case law. More than that, there are also other practical circumstances which even further limit the potential use of the Protocol 16 advisory procedure. It would probably last a while before a new problem that would give a chance to address issues contained in Opinion 2/13 emerges in domestic proceedings (also due to the CJEU jurisprudence nuancing its approach to some of the EU law principles - especially mutual trust - in its recent case law[73]). Even if such case would arise, it would not be obvious that a court or tribunal would lodge a request for AO to the ECtHR due to some characteristics of the procedure, which from one perspective might be considered as its strength, but from another perspective show its potential weakness. I mean here again the not obligatory and nonbinding character of the Protocol 16 AOs in the light of a possible length of the proceedings, which in order to reach the highest courts and tribunals of the states already have to be rather lengthy, what might discourage the court or tribunal from even further prolonging the proceedings by seeking an opinion for which it is not obliged and with which it will not be bound instead of dealing with the case by itself.[74]

It should not remain unnoticed that an attempt at tackling Opinion 2/13 through Protocol 16 advisory procedure could be tricky from a more political than legal perspective. It could strengthen the “disloyalty” effect stemming not any more solely from the fact that Protocol 16 has been introduced with "the active role of some EU Member States in introducing nation-state-serving amendments to the ECHR"[75] just after the DAA negotiations have been closed, but also from the fact that Protocol 16 AO procedure would be actually used, or it would be perceived that it was used, "against" the CJEU after it had clearly expressed its critical assessment of its compatibility with EU law. Nevertheless, the aforementioned opportunities, which the procedure opens for the domestic courts and tribunals in cooperation with the ECtHR might prevail and convince them to try to give the ECtHR a chance to take a stand and the ECtHR might be tempted to use it.

* * *

Opinion 2/13 is the stumbling block in the process of EU accession to the ECtHR. It halts the process until the accession agreement is changed to become compatible with EU law or until EU law is changed so that the agreement is not contrary to it. “To say that either of these options is difficult is probably an understatement.”[76] The process could be facilitated and the scope of necessary changes could be limited by realizing that some of the CJEU’s demands are indeed ill founded, achievable through consistent with EU law application of the current agreement or are possible to be solved by the EU itself (together with its Member States). Setting some limits to the possible changes is also necessary so that the accession reflects characteristics of the Strasbourg system and does not undermine the goals behind the accession. This has been already analyzed elaborately in scholarly work. Perhaps a statement from the ECtHR itself might provide a new incentive for such a way of thinking. It seems, however, that the Strasbourg court is not equipped with procedural possibilities to do that in a systemic and direct way. Neither the Articles 47-49 of the Convention nor the Protocol 16 advisory procedures provide such a possibility.

The way to shape the future relation between the Strasbourg and Luxembourg courts is by the case law. This has already allowed the ECtHR to express its opinion on some of the issues raised by the CJEU in Opinion 2/13. That concerns only issues of general importance for fundamental rights protection in Europe regardless of accession, which have been issues both before and after Opinion 2/13, as well as which will probably be relevant also after the accession. As such, they may resurface as well in the Protocol 16 advisory procedure. Some of the features of the procedure, like its nonbinding and notobligatory character as well as the kind of institutions competent to request the opinions might be considered as encouraging to apply this procedure to that end. The requesting courts would be the hosts of the procedure and decide on the application of its results, and they could use these results to shape their relations not only with the ECtHR but also with the CJEU. Also, the nonbinding character of the Protocol 16 AOs might encourage the ECtHR to express more far-reaching or controversial conclusions than in the ordinary proceedings. On the other hand, the not obligatory and nonbinding character of the procedure might discourage the domestic courts from unnecessarily prolonging the proceedings with a request, especially if it would likely be outside of the scope of the Protocol 16 advisory procedure or would concern an issue already resolved in the ECtHR’s case law, which would result in the request being struck down. That might lead to the possibility for the ECtHR to address in the advisory procedure, even if only indirectly and even if only some of the issues which are covered by Opinion 2/13, never to occur.