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The ECJ and the ECtHR: The Future Relationship between the Two European Courts

The ECJ and the ECtHR: The Future Relationship between the Two European Courts <jats:sec><jats:title>Abstract</jats:title><jats:p>The current relationship between the two European courts has been discussed in some great detail while the future of that relationship has been widely neglected. This is somewhat surprising as the entry into force of the Lisbon Treaty and with it of the EU Charter of Fundamental Rights as well as the EU's succession to the ECHR are probably going to take place before too long. The article first examines Article 52(3) of the Charter, which prescribes that the ECHR be the minimum standard of human rights in the EU. It is argued that Article 52 (3) does not entail a reference to the ECtHR's case law so that the ECJ will not be bound by that case law. After an accession of the EU to the ECHR, it is likely that both courts will assert that they have exclusive jurisdiction over the ECHR in inter-state cases, which creates a jurisdictional conflict for which a solution must be found. In addition, the article explores whether after an accession, the Bosphorus case law will have a future and whether the dictum found in Opinion 1/91 will be applicable, according to which the ECJ is bound by the decisions of courts created by an international agreement to which the EC is a party.</jats:p> </jats:sec> http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png The Law & Practice of International Courts and Tribunals Brill

The ECJ and the ECtHR: The Future Relationship between the Two European Courts

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Publisher
Brill
Copyright
© 2009 Koninklijke Brill NV, Leiden, The Netherlands
ISSN
1569-1853
eISSN
1571-8034
DOI
10.1163/156918509X12537882648426
Publisher site
See Article on Publisher Site

Abstract

<jats:sec><jats:title>Abstract</jats:title><jats:p>The current relationship between the two European courts has been discussed in some great detail while the future of that relationship has been widely neglected. This is somewhat surprising as the entry into force of the Lisbon Treaty and with it of the EU Charter of Fundamental Rights as well as the EU's succession to the ECHR are probably going to take place before too long. The article first examines Article 52(3) of the Charter, which prescribes that the ECHR be the minimum standard of human rights in the EU. It is argued that Article 52 (3) does not entail a reference to the ECtHR's case law so that the ECJ will not be bound by that case law. After an accession of the EU to the ECHR, it is likely that both courts will assert that they have exclusive jurisdiction over the ECHR in inter-state cases, which creates a jurisdictional conflict for which a solution must be found. In addition, the article explores whether after an accession, the Bosphorus case law will have a future and whether the dictum found in Opinion 1/91 will be applicable, according to which the ECJ is bound by the decisions of courts created by an international agreement to which the EC is a party.</jats:p> </jats:sec>

Journal

The Law & Practice of International Courts and Tribunals – Brill

Published: Jan 1, 2009

Keywords: ECJ; JURISDICTIONAL CONFLICT; ECTHR; BOSPHORUS CASE; ECHR ACCESSION; EXCLUSIVE JURISDICTION; EU CHARTER OF FUNDAMENTAL RIGHTS

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