Emma Lehtinen, Doctoral student, University of Tampere
- The Lisbon Treaty and the European Union’s accession to the European Convention on Human Rights
The aim of this paper is to examine the human rights jurisdiction of the European Court of Human Rights (the Strasbourg court) and European Court of Justice (the Luxembourg court), and to consider how they interact with each other. First, the paper looks at how these two courts acknowledge each other’s existence and cite each other’s case law. This paper examines this complex coexistence mostly from the European Court of Justice’s point of view since the EU Charter of Fundamental Rights was made formally binding by the Treaty of Lisbon in 2009. The risk of overly fragmented case law between the Convention and the Charter of Fundamental Rights is a new source of conflict, especially after the Treaty of Lisbon.
According to the Article 6(2) of the Treaty, the EU will accede to the European Convention on Human Rights. However, the accession should not affect the Union’s competences. During the past year, the European Union’s accession to the European Convention on Human Rights has become one of the most topical issues in Europe, especially after the European Court of Justice’s ruling of the access of the EU to the Convention. The infamous 2/13 opinion condemned the draft agreement outright. Not only did the court find many issues to criticize, the court also ruled that the draft agreement was incompatible with the Treaties. This criticism will undoubtedly have some influence on the future accession. It was also said that the EU Charter would neither undermine the Convention nor the role of the Strasbourg court. Nevertheless, there has been notable problems and the relationship between the European Court of Justice and the European Court of Human Rights has produced a major concern on the part of the Luxembourg court, which is mostly concerned about its own autonomy and authority to rule on matters of EU law.
The Luxembourg court also highlights an autonomous EU approach to the interpretation of the Charter. In addition, one of the most interesting questions is that the court did not address Article 52(3) of the Charter at all. According to Article 52(3), “Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection”. Overall, Article 52(3) establishes the minimum level of protection and also an opportunity to improve the existing level. However, the application of this Article will always include some level of hesitation. Because of this, the case law is extremely important in determining the level of protection provided by the Convention. Because of this, it is highly important that both courts cite each other’s case law extensively and in detail. The importance of this matter increased exponentially after the Treaty of Lisbon was signed. However, as this paper indicates, this is not always the case. Currently, the citings are rather terse, mechanical, rare, and non‑specific in their nature.
2. The reluctance of the Luxembourg Court to draw on comparative Law, and the residual role of the Convention
Both courts are making more frequent use of each other’s case law, which has also lessened the chances of contradictory rulings. Human rights have gained a more important role in the EU. However, the Luxembourg court’s new and broader human rights jurisdiction is mostly focused on preserving its own status and the supremacy of EU law. Since human rights law is vastly regulated in European law, both courts tend to use of each other’s case law in a rather terse manner. The Luxembourg court’s fear of losing its autonomy and/or jurisdiction explains to some extent the lack of coherence and uniformity in the use of case law. The rarity and selectivity, however, indicates the Convention’s residual role in the Luxembourg court’s rulings. As both courts are transnational, much of their case law is built on their own general principles of law. It is understandable that both the European Court of Justice and European Court of Human Rights pursue their own autonomy and control while trying to avoid conflicts. However, it should be noted that there must be mutual awareness by the courts to avoid unnecessary conflicts out of ignorance. Due to this acknowledgment, each court needs to tread carefully in the present complex jurisdictional arena.
So far, the European Court of Justice has emphasized an autonomous EU approach to the interpretation of the Charter. Since 2009, the Luxembourg court has cited the Strasbourg court’s case law and the Convention increasingly less frequently. In most cases, the Luxembourg court’s judicial reasoning and citing technique is formulaic, impersonal, and fairly minimalist in style. Of course, some judgments can be singled out in which the Luxembourg court has used more detailed argumentation. However, even after the Treaty of Lisbon, this practice is still extremely rare. In interpreting and establishing human rights standards under the EU Charter, the Luxembourg court still rarely relies on other international case law in its rulings. Acting thus, it also misses an opportunity to strengthen and legitimize its rulings in the eyes of European citizens. In 2009─2012, the Luxembourg court made reference to or drew on provisions of the EU Charter in 122 judgments. The Luxembourg court substantially analysed one or more provisions of the Charter in 27 of 122 judgments. Within these 27 cases, the case law of the Strasbourg court was referred to in 10 cases and in all of these cases, the court approved the reasoning of the Strasbourg court. In the remaining 95 cases, the reference was only in passing. The Luxembourg court referred to the Convention in 18 of these 122 cases, and the Advocate General made 34 references. Only eight cases included the Convention provision in the Luxembourg court’s reasoning.
In recent years, the application of Article 52(3) by the Luxembourg court has undergone some changes. The Luxembourg court does not participate in detailed case law analyses even where such references are required under Article 52(3). It seems that only the Advocates General of the Luxembourg court do not seem to follow the court’s trend. The worst-case scenario is that in future there will be two sets of case law on the same fundamental rights; this would not help to promote the legal certainty in Europe. Nevertheless, this type of autonomy has no basis either in the Charter or in the Treaty of Lisbon. All things considered, the problem is rather paradoxical. The accession of the EU to the Convention may offer some order in this issue, but does it solve the problem?
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