This contribution might be of interest : The European Court of Human Rights and the Law of the European Union, Including the Charter: A Subtle Control between Adjustments of Systems and Mutual Influences
The French version of this paper can be found at http://ssrn.com/abstract=2044855. It will be published in L’Union européenne et les droits fondamentaux: les nouveaux défis (The European Union and Fundamental Rights: New Challenges), Claude Blumann, Emmanuel Decaux & Jacqueline Dutheil de la Rochère (eds.), Paris: Pedone, 2012, Forthcoming
What the paper is about?
The negotiations of accession of the EU to the ECHR are formally under way to make the EU the 48th Contracting Party to the Convention. Interactions between the two European legal orders already exist and are well known. The ECHR-EU relationship has been developed by the case law of the European Court of Human Rights and the Court of Justice of the EU through a non anticipated but ever more necessary strategic dialogue in order to remedy the lacunae and weaknesses within the normative arrangement of the protection of fundamental rights in Europe. This paper focuses on the role of the ECtHR in relation to EU law. It examines, in light of recent case law (esp. M.S.S. v. Belgium and Greece, Ullens de Schooten and Rezabek v. Belgium, Bayatyan v. Armenia), the spontaneous solutions developed by the Strasbourg Court to deal with the norms of the EU legal order, whether the Court has been confronted with it or inspired by it, in particular by the now binding Charter. The analysis considers how the ECtHR has taken on a prominent role in the interferences between the case law of both courts in this regard and questions how it will be able to assume this responsibility when the ECtHR exercises a direct review of EU norms.
The paper argues that while accession will normalize the ECHR-EU relationships, it will put extreme pressure on the Strasbourg Court. In addition to the considerable workload, and once procedural and technical issues will be dealt with in the accession agreement, the Court will have to deal with more substantial issues regarding its treatment of EU law such as for instance the future of the Bosphorus test or the legitimacy of reliance on the Charter when identifying a consensus in its case law. These issues are specifically linked to its interaction with EU law and its degree of review of EU acts post-accession; they are also very much linked to the more ‘existential’ issue about the role of the ECtHR per se and the kind of justice (individual, institutional or constitutional) it ought to deliver in the future to successfully control and adjust the protection of fundamental rights in Europe for the benefit of the individuals.
D.Thomas says:
This paper on the legal and judicial significance of EU accession to the ECHR offers a valuable antidote to the flood of unfounded rhetoric on this topic, particularly in the UK. Despite its traditional record as a champion of human rights in Europe, the current British government has used its post (November 2011-May 2012) as chair of the Council of Europe to pursue several initiatives seemingly at odds with this commitment. In particular, the UK has dragged its feet on supporting EU accession to the ECHR and tried to weaken the binding character of ECHR rulings. This is reportedly all at the behest of Tory MPs who believe that the Council of Europe poses an unacceptable threat to national sovereignty. (For details, see http://euobserver.com/22/115954) Winston Churchill must be turning in his grave.