The Use of ECtHR Case Law by the Court of Justice after Lisbon
| Published date | 01 December 2015 |
| Date | 01 December 2015 |
| DOI | http://doi.org/10.1177/1023263X1502200603 |
| Subject Matter | Article |
812 22 MJ 6 (2015)
THE USE OF ECtHR CASE LAW BY THE
COURT OF JUSTICE AFTER LISBON
e View of Luxembourg Insiders
J K*
ABSTRACT
is article examines how and why the Court of Justice examines and cites the case law
of the ECtHR a er the entry into force of the Ch arter of Fundamental Rights in 2009. e
Court’s practice will be sketched on the basis of 20 interviews with judges , référendaires
and Advocates General at the Court of Justice. It will be shown that the Court of Justice
has examined and cited the Strasbourg case law less frequently and ex tensively. Several
reasons will be given for this, p rimarily on the basis of the observations of the interv iewees
as to their readiness to cite the Strasbourg case law. is includes a growing awareness
that both courts are di erent as well a s strategic reasons related to the wish to develop an
autonomous interpretation of the Charter.
Keywords: Charter of Fundamental Rig hts; Court of Justice of the Eu ropean Union;
European Court of Huma n Rights; judicial dialog ue; Opinion 2/13
§1. IN TRODUC TION
No other ‘foreign’ court has been cited by t he Court of Justice (the Court) on as frequent
a basis as the European Court of Human Rig hts (ECtHR). Some observers even noted
* Assistant Profe ssor of European law, Radboud Universit y, Nijmegen, the Netherlands. I would l ike to
thank Ma lu Beijer, Gráinne de Búrca, Jan neke Gerards, Lize Gla s, John Morijn and Marc Veenbrink
as well as the t wo anonymous peer reviewers for t heir valuable comments on ea rlier versions. A more
detailed version of t his article, wit h a more elaborate discussion of the me thodology, Court of Justice
judgments as well a s other sources can be fou nd in J. Krommendijk, ‘ e use of ECtHR c ase law by the
CJEU a er Lisbon: t he view of the Luxembou rg insiders’, Maastricht Faculty o f Law Working Paper
(2015).
e Use of ECtHR Case L aw by the Court of Justice a er Lisbon
22 MJ 6 (2015) 813
that the Court of Justice has in practice operated as if t he EU were already a party to
the accession of the EU to the ECHR to be i ncompatible with Article6(2) TEU, might,
however, herald a new era and change this practice of extensive ‘cross-fertilisation’ and
‘para llel i nterpretation’.2 at is to say, Opinion 2/13 uncovers the frustration of some
judges of the Court of Justice t hat the EU context is not always su ciently taken into
account by the ECtHR.3 is Opinion also underlines t he recent trend whereby the Court
of Justice is increasingly relying on its ‘own’ instrument, t he Charter of Fundamenta l
Rights.4 Some even expect that the Charter will eventually sideline the ECHR and t he
ECtHR altogether.5 But is this really the case? Do fewer explicit citations of the ECtHR
also mean t hat the Court of Justice is no longer exami ning the ECtHR in-depth? Why is
Strasbourg actua lly cited in some cases, while not in ot hers?
Relatively little is known about the actual pract ice at the Court of Justice and the
way in which the case law of the ECtHR is examined by judges , Advocates General and
référendaires.6 is article se eks to unravel this practice by ask ing those who have the best
direct knowledge of what is happeni ng: those working in the Court of Justice. e author
therefore conducted interviews with 20 individuals at the Court of Justice in December
2014: two former and seven sitting judges, seven référendaires to judges , three référendaires
1 A. Rosas, ‘ e E uropean Cour t of Justice in context: for ms and patterns of jud icial dialog ue’, 1European
Journal of Lega l Studies (20 07) , p.1–16 , 10; B . de Witt e, ‘ e use of th e ECHR and Convention ca se law by
the European C ourt of Justice’, in P. Popelier et al.(eds.), Human r ights protection in the Europe an legal
order: the interac tion between the Europea n and the national court s (Intersentia, 2011), p.17–34, 17–18.
2 F.G. Jacobs, ‘Judicial dia logue and the c ross-fertili zation of legal sy stems: the Europea n Court of
Justice’, 38 Texas Interna tional Law Journal (2003), p.547–556; Joint com munication from Presidents
Costa and Skour is, 24 January 2011, curia.eu ropa.eu/jcms/upload/docs /application/pdf/2011–02/
cedh_cjue_english.pdf, para. 1.
3 Opinion 2/13 on the Access ion of the European Union to the Eu ropean Convention for the Protec tion
of Human Right s and Fundamental Fre edoms, EU:C:2014:2454, para . 192–194. For a good analysis , see
E. Spaventa, ‘A very fear ful Court? e protection of Fundame ntal Rights in th e European Union a er
Opinion 2/13’, 22Maa stricht Journal of Euro pean and Comparative Law(2015), p.35–56.
4 Opinion 2/13 on the Access ion of the European Union to the Eu ropean Convention for the Protec tion
of Human Right s and Fundamental Freedom s, para. 170.
5 L. Scheeck, ‘Diplom atic intrusions , dialogues a nd fragile equ ilibria: t he European Cour t as a
constitutiona l actor of the European Un ion’, in J. Christo e rsen and M.R. Madse n (eds.), e European
Court of Human Righ ts between Law and Politic s (Oxford Unive rsity Pres s, 2011), p.164–180, 165; G. d e
Búrca, ‘A er t he EU Charter of Fund amental Rig hts: the Court of Jus tice as a human rig hts adjudicator’,
20 Maastricht Journal o f European and Comparative L aw (2013), p.168–184, 172; C. Timmerma ns, ‘Will
the accession of t he EU to the ECHR fundamenta lly change the relationship b etween the Luxemburg
and the Stra sbourg Courts? ’, CJC Distinguished L ecture (2014), cadmus.eui.eu/ha ndle/1814/31932, p.12.
6 ere have been two res earch projects f rom before and shortly a e r the entering into force of t he Lisbon
Treaty with a broader fo cus. L. Schee ck, ‘Competition, con ict and cooperat ion between Europe an
courts and t he diplomacy of supranat ional judicial ne tworks’, GARNET Working Pape r 23 (2007),
www2.warwick.ac.uk/fac/soc/garnet/workingpapers/2307.pdf; S. Morano-Foadi and S. Andreadakis,
‘A report on the protection of fu ndamental rights in Eu rope: a re ection on the relat ionship between
the Court of Just ice of the European Union and the Europe an Court of Huma n Rights’, Council o f
Europe (2014), https://dm.coe.int/CED20140017597.
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