Abstract

The accession of the EU to the ECHR raises several problems. This article argues that procedural problems are fundamentally rooted in substantive issues, with specific regard to the sources of EU law. More precisely, in order to allow accession, it would be essential to review Article 6(3) TEU so as to lower the level of the ECHR as a source of general principles of EU law to (at least) the same hierarchical level as the founding treaties. Yet, while this solution can be satisfactory for EU Member States that are parties to the ECHR and its protocols, it is not necessarily appealing to non-EU States that are parties to the ECHR system, similar to the stall generated by the Energy Charter Treaty in the field of investment. Furthermore, the solution fundamentally clashes with the consolidated priority of the general principles of EU law crystallized in cases such as Kadi.