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.