With the adoption of the Lisbon Treaty the 27 EU member states took measures to unify the two separate regimes protecting human rights in Europe. Article 6 TEU provides that “the Union shall accede to the European Convention of Human Rights and Fundamental Freedoms”, which consequently means that both the ECJ and ECtHR, will share jurisdiction over the Convention. As a result of the accession to the Convention, the Union is going to be treated like the other contracting states, and the judgements of the ECJ will consequently be subjected to review by the ECtHR. This accession will thus provide an impetus for interpretational coverage between the two courts and also the benefit of external review of the ECJ’s decisions. While it could be argued that this is a necessary step, Tommaso Pavone, the author of the paper “The Past and Future Relationship of the European Court of Justice and the European Court of Human Rights: A Functional Analysis” (published in May on the SSRN website)argues that the significance of these reforms is likely to be more symbolic than substantive.
In the aftermath of World War II two different regimes for the protection of human rights emerged in Europe. One supervised by the Council of Europe, i.e. the European Court of Human Rights (ECtHR) is dealing with democracy, human rights and the rule of law, and the other one, the European Court of Justice (ECJ), an institution of the European Union mostly deals with economic integration. So, consequently even though these two courts, the ECJ and the ECtHR, jurisdiction overlaps they have jurisdiction over different human rights instruments. This can be problematic as it creates two separate bodies of law that are subjecting the European countries to dual treaty obligations, due to the differences in the functions and mandates of the two courts problems with the uniform interpretation of the Treaty provisions may also occur.
Pavone assertion that the EU’s accession to the ECHR is merely a symbolic act is understandable. The EU has claimed jurisdiction over the ECHR since the Nold case in 1974, and the accession does not broaden the substantive jurisdiction of the ECJ. It only certifies the Court’s holding in the aforementioned case by rendering the jurisdictional expansion official. Due to the principle of subsidiarity, the EU’s accession will furthermore not provide the opportunity for individuals to sidestep the ECJ and seek remedy directly in the ECtHR and if one interprets Article 344 of the TFEU and Article 33 ECHR, it seems evident that the ECJ will have exclusive jurisdiction over inter-state disputes and that its judgments in these disputes will remain final and the ECtHR’s jurisdiction will be excluded.
In his paper Pavone also asserted that even before the Lisbon Treaty entered into force in 2009, the legal order was “an extremely functional institutional and legal system that did provide for the uniform development of European human rights law” (at p. 3), as the primary function of each court was different. While the ECJ is an integrative agent, the ECtHR is to seek balance between a minimal standard of human rights protections and the diverse customs and practices that add texture to the European social landscape (at p. 8-9). Hence, while the ECJ with its predominantly economic caseload issues expansive and integrative rulings without provoking much national political resistance, the ECtHR, with its exclusive focus on human rights on the other hand tackles the more politically charged questions of human rights protection.
The jurisdiction issue began to be redirected and that is because human rights issue is beyond the rights themselves. It is no longer a subject that determines jurisdiction. On the contrary, now it has been used as label marketing to legitimate policies and political actions. The struggle between the courts is much more political than a matter of jurisdiction or the right itself. The Bosphorus v. Ireland case, in which the ECtHR had to decide whether Ireland could be held responsible for a violation of ECHR when incorporating an EU regulation, showed exactly this when the ECtHR, in order to avoid that its judgment could be reviewed by the ECJ in its judicial review power, held that “action taken in compliance with such legal obligations is justified as long as the relevant organization is considered to protect fundamental rights […] in a manner which can be considered at least equivalent to that for which the Convention provides […] If such equivalent protection is considered to be provided by organisation, the presumption will be that a State has not departed from requirements of the Convention”.The decision in this case, which is a mix of a legal and political matter, shows a degree of comity towards the ECJ.
Pavone also asserted that before the Lisbon Treaty came into force, private litigants had the opportunity of forum-shopping, i.e. the possibility to have their case heard in the court which is most likely to issue a favorable decision. As a counter-argument to EU accession to the ECHR, Pavone furthermore stresses that both the ECtHR and the ECJ developed customary practices as a way to ensure inter-court comity as well as interpretational convergence, which contributed to the creation of a uniform body of European human rights law. The author furthermore points out that to actually subsume the task of promoting European integration with that of protecting fundamental rights within a single court would have compromised the court’s ability to fulfill either of the tasks. Hence, the endeavor to promote market integration is a completely different task from protecting fundamental rights.
However, after considering the main purpose of EU accession to the ECHR, i.e. to strengthen the protection of fundamental rights, it seems to be plausible and positive that this accession is taking place. Hence, it not only strengthens the protection of fundamental rights in Europe but also shifts the mere economic orientation of the EU to include a more balanced perspective. It can furthermore be argued that since the ECJ has little experience in dealing with cases concerning human rights violations, the ECJ would gain much by relying on the expertise of the ECtHR, which the ECJ already also does and vice versa. However, even if the ECJ and the ECtHR already increasingly refer to each other’s case law and this customary practice ensures that a uniform human rights standard is created in Europe through “interpretational parallelism”, as Pavone argues, it would better if a single regime dealing with human rights would be created. Hence, it would avoid potential jurisdictional conflicts and also foster inter-court comity to an even larger extent.
Mathieu Delsol, Marijela Kokalovic, Airton Valente, and Samiya Warsame