Is The European Convention Going To Be “Supreme”? A Comparative-Constitutional Overview Of ECHR And EU Law Before National Courts
European Journal of International Law, 2012, 401-424.
Posted: 7 Dec 2011 Last revised: 15 Jul 2012
Date Written: July 14, 2018
This article tries to answer the question: “Are national judges extending the structural EU law principles (primacy and direct effect) to the European Convention on Human Rights”?
I do not intend to examine the broader issue of the rapprochement between the legal systems of the EU and the European Convention on Human Rights (ECHR), but to concentrate on how national judges treat the ECHR compared with how they treat EU norms. While there is a massive literature analysing either the issue of the national application of EU law or that of ECHR norms, a specific comparative analysis which takes into account the national judicial treatment of both laws is still missing.
This investigation will concern some selected constitutional experiences. It will be ascertained whether national judges treat ECHR and EU law similarly, and to what extent they facilitate their convergence. In this respect, my purpose is to study the judicial application of the ECHR and EU law to analyse the vertical relationship between national judges (constitutional and ordinary alike) and these external legal sources. As such, I am not interested in the horizontal convergence between the European Court of Human Rights (ECtHR) and the CJEU. Obviously, these two dynamics are strongly related and both European courts have undergone deep transformations, especially after the enlargements of the EU and the Council of Europe.
Keywords: European Union Law, National Courts, European Convention on Human Rights
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