Judicial Co-operation and Human Rights in Europe after the Treaty of Lisbon: A Twist in the Tale of Two Courts

AuthorLouise Campbell
S.S.L.R. A Tw ist in the Ta le of Tw o Cour ts?
Judicial Co-operation and Human Rights in Europe
after the Treaty of Lisbon: A Twist in the Tale of
Two Courts?
Lou ise Cam pbell
The com ity developed between the Cou rt of Justice of the European Union
and the European Court of Human Righ ts over the past 40 years has long
been discussed by academics. As th e Cou rt of Justice developed its own
human rights case la w wit h respect to both the European Con vention on
Hu m an Rights an d Fu ndam en tal Freedoms an d the European Cour t of
Hu man Rights decisions, the contradictory relation ship th e Union institu tions
held with hum an rights became increasin gly app arent. Th is raised the parallel
argument r egarding European Un ion accession to th e European Con ven tion
on Hum an Rights. These debates are considered at len gth, for it is believed
th at even the earliest elem ents an d arguments pu t forward ma y have a bear ing
on how relations between the two cou rts will proceed in the light of th e
requirem en t for the European Union to formally accede to the Eur opean
Convention on Hum an Rights un der Article 6(2) TEU. Both debates have been
inflam ed by the decision t o acced e, for on th e basis of th e draft accession
agreement, released for guidance from the Committee of Ministers, significant
gaps are identified an d th e agreement is silent on many key concerns. To
name a few, t here is no men tion on the futu re the “Bosphoru s presum ption”,
by which th e European Court of Human Righ ts privileges the Eur opean Union
by assu ming an equivalent level of protect ion to that un der t he Conven tion.
Additionally, there is no provision for prior Court of J ustice in volvem ent
despite th is being clearly desired by negotiat ors, court ju dges and academics
alike. In the light of the latter con sideration , som e rumination on whet her
prior Cou rt of Justice involvement is necessary and, if it is, how to effect th is
are exam ined . Th e cu rrent proposals, such as an Article 267 TFEU-esque
reference proced ure mech anism, are argued to be significantly flawed.
However, many of these flaws hinge on the fact that decision m akin g in both
Cour ts is extensively tim e-consuming. Further to th is, un der th e decision in
Kadi v Coun cil and Commission, the mechanism decided upon mu st not
confer new powers on an y inst itution in what may be conceived to be a
concealed amend ment to the Tr eaties. Some con clusions on the general effects
of accession are explored, su ch as th e possibilit y of the decisions of the Court
of Hu man Righ ts becom ing bin ding on the Court of J ustice and whether the
Court of Human Rights is to be grant ed too much power . Ult imately, in the
[2012] Sou tha mpton Stud ent Law Review
Vol. 2
light of the ten tative r elation ship between the two Cou rts th e possibility of a
renewed supremacy bat tle, if the relationship is not clarified in the fin al
accession agr eemen t, cou ld delay the achievement of coheren t hu m an r igh ts
pr otect ion in Eu rope.
‘Hum an rights pr otect ion an d pr omot ion h ave com e to represent an im porta nt
part of the Eur opean Union ’s iden tity today.’1
his obser vation, un dou btedly corr ect, was realised largely through the
work of the Cou rt of Ju stice of the European Union (CJ EU). The
Supreme Cou rt of the Eur opean Union’s (EU) legal order began
develop in g its own hu m an rights jurisdiction 19 years after the creation of the
European Convention on Human Righ ts and Fu ndamen tal Freedom s 1950
(ECHR or the Con ven t ion). As will be explored, ‘the problem of relations
bet ween th e ECHR an d European in tegr ation is almost as old as integration
itself.’2 The m ost prom in ent of these is that which developed between th e
CJEU an d the Eu ropean Court of Human Right s (ECtHR) for ‘the story of
human rights in th e EU is largely the st or y of in teraction bet ween th e
Luxembourg and Strasbourg Cou rts.’3 The gr owth of this r elation sh ip will be
exam ined in relation to t he acknowledgemen t of each other ’s case-law an d th e
“dialogue” which has developed on a jurispruden tial and a personal level
bet ween the J udges an d Presidents of th e two Court s.
Parallel to the development of hu m an righ ts as fundamental principle of EU
law ran the accession debate. Sh ould the EU accede to t he Con ven tion ? There
were many public debates and publication s, each evoking different
observations on the current and fut ure relationship between the two Courts
should the EU be able to accede. Many key proposals were put forward by the
European Com m ission (the Commission), suggestin g the importance they
placed on human rights in th e ear ly st ages of the European Un ion. However,
develop men t of these proposals was arguably restricted un til the common
market was ‘largely achieved’. 4 Man y key them es, docu men ts and
observations of the accession debate will be discussed alongside th e b enefit s
and flaws of such proposals, perhaps explaining why m ovement in this area
has been so slow, de spite su ppor t from t he EU in stit utions.
1 Gráin ne d e Búrca: ‘The E volutio n of EU H uma n Right s Law’ in Pa ul Craig a nd Gr áinn e de
Búr ca (eds ): The Evolu tion o f EU Law (Seco nd Ed ition , Oxfor d Unive rsit y Press , New York.
20 11), 49 5.
2 Je an Pa ul Ja cqué: The Acc ession of the Eur opea n Unio n to t he Eur opean Conve ntion on
Hu ma n Rig hts a nd Fun dam ent al Freed oms (2011) 48 Comm on Ma rket Law Review 9 95,
99 5.
3 Sionaid h Dougla s-Scott: A Ta le of Tw o Cour ts: Lu xem bour g, Str asbou rg a nd th e Grow ing
Eur opea n Hu man Righ ts Acq uis (200 6) 43 Com mon Mar ket Law Review 6 29, 63 0.
4 Ibi d, 661.

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