In the last number of the Comparative Law Review (Vol. 3, No. 2, available online) there is a very interesting paper by Oreste Pollicino, Associate Professor of Law at the Bocconi University in Milan, on the genesis and the first steps of ECHR and EU legal orders.
The goal of the paper is to demonstrate that, if it is true that before the Europe’s enlargement to the east the distance between the domestic impact of European Convention of Human Rights (ECHR) and EU law was very broad, this was not the original situation which characterised the origins of the two supranational organisations. More specifically, with particular regard to the genesis of the two European Courts, it will be argued that, at the time of its foundation, the ECtHR had at least the same (if not greater) potential for intrusiveness towards Member States sovereignty than the ECJ did. If the following years have told a different history, this was fundamentally due, as it will be seen, to two factors; the first one is an unexpected “acceleration” of the ECJ; the second one the concomitant “slow-motion” start up of the ECtHR.
TABLE OF CONTENTS:
II. THE REASONS OF A CHOICE: THE UNDERVALUED ORIGINAL SIMILARITIES BETWEEN THE TWO SUPRANATIONAL ORGANIZATIONS WITH REGARD TO THEIR RESPECTIVE IMPACT ON THE MEMBER STATES LEGAL ORDERS.
III. THE ORIGINAL CONVERGENCE AND THE FIRST TREND OF DIVERGENCE.
IV. DISTINTIVE FEATURES OF THE TWO LEGAL SYSTEMS WITH REGARD TO THEIR IMPACT ON THE MEMBER STATES LEGAL ORDERS.
A. The ECHR system.
B. The EEC legal order.
V. THE ORIGINAL INTERNATIONAL NATURE OF THE TWO EUROPEAN COURTS.
VI. THE EEC LEGAL ORDER: THE FIRST STAGE AND THE ACCELERATION OF THE
A. The Emergence of Fundamental Rights Protection in the EEC Legal Order.
B. End of the ECJ’s golden age and post-Maastricht prudence.
VII. THE ECHR DIMENSION: THE ECtHR AND ITS “SLOW MOTION” START.
A. From the beginning of the 1970s to the reform of Protocol 11.
The complete article can be downloaded from here.