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The EU’s planned accession to the ECHR would be a new qualitative level of EU participation in international functional regimes
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The accession has the potential to change the relationship between EU law, the ECHR and national law, as well as between the EU institutions and Member States. The ECHR enjoys a supreme status within EU law, arguably above EU primary law. After Accession it would additionally be binding not only on the EU institutions but also on the Member States – within the scope and as a matter of EU law. The EU Courts, as well as national courts, would have to enforce the ECHR and the binding decision of the ECtHR, arguably above EU law. This vests the Member States and national courts with a new tool in the suspended disagreement about the nature and origin of EU law. Ultimately, it gives national courts the opportunity to drive a wedge into the judicial construction of the autonomous EU legal order. Accession has hence the potential to rebalance the judicial power balance by allowing national courts to challenge the CJEU’s narrative from within.