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?

Abstract The EU Common Foreign and Security Policy concerns some of the most sensitive aspects of State sovereignty. Hence, EU Member States remain reluctant to submit to full judicial review by the cjeu . On that basis, the cjeu argued in Opinion 2/13 that the ECtHR’s review powers regarding the cfsp should be equally circumscribed, lest they will violate the principle of EU autonomy. This state of affairs led to a series of proposals by the EU delegation during the accession negotiations that attempted to automatically attribute acts within the cfsp to Member States. This contribution sheds light to those proposals. It specifically illustrates how these cannot be accepted as they are liable to cause pernicious effects on the tertiary rules relating to international responsibility, thus, undermining the ECtHR’s judicial function and the principle of effective judicial protection. Consequently, they were correctly abandoned paving the way to a solution premised on an expansion of the cjeu ’s review powers in the cfsp field, as reflected in a recent string of cjeu judgments.