Will the accession of the EU to the European Convention on Human Rights fundamentally change the relationship between the Luxemburg and the Strasbourg Court?

Abstract

During the last decade the structure and scope of fundamental rights protection in the EU have dramatically changed. Ever-closer links have been established between the European Court of Human Rights and the Court of Justice of the EU, and their respective jurisprudence. Moreover, the Lisbon Treaty has elevated the EU Charter of Fundamental Rights to the status of EU primary law and imposed an obligation on the EU to accede to the European Convention on Human Rights (ECHR) (Article 6 (2) EU). How will the accession impact on the relationship between the Courts? On the one hand, the ECHR and the case law of the Strasbourg Court have of course always been an important source of inspiration for the CJEU ever since it started to develop its case law on fundamental rights protection. The Convention as an instrument of international law did not directly bind the EC/Union. Yet, in practice the approach of the Luxemburg Court has come to be quite close to Strasbourg by way of increasing its acceptance and reference to the latter’s case law. And this influence has been reciprocated. This judicial dialogue is not just a matter of judicial diplomacy. Often, the references to each other’s case law reflect a real mutual impact. The CJEU has, on occasion, invoked the evolution of the case law of the Strasbourg Court to adapt its own interpretation of the scope of fundamental rights’ protection. Also the Strasbourg Court has sometimes referred to an evolution of the Luxembourg Court case law as an argument to further develop its own interpretation of the Convention. There is more to be said about this mutually beneficial effect of the cooperation between both Courts through their case law. Indeed, both Courts have been instrumental to strengthening each other’s legal system.