(Judicial) Love is Not a One-Way Street: The EU Preliminary Reference Procedure as a Model for ECtHR Advisory Opinions Under Draft Protocol No. 16
(2013) European Law Review, No. 2 (April)
24 Pages Posted: 8 Aug 2013
Date Written: August 1, 2013
Owing to the overwhelming number of applications before the European Court of Human Rights (ECtHR), Draft Protocol No.16 proposes the introduction of a new advisory opinion procedure. This procedure aims at alleviating Strasbourg’s judicial workload by enabling the domestic courts of the contracting parties to request advisory opinions on alleged human rights violations, which could in turn serve as precedents for future applications. The principal purpose of this article is to present the most important provisions and legal consequences of the newly proposed advisory opinion procedure; but also, as this procedure draws certain inspirations from the European Union’s preliminary reference procedure, the article aims to contrast these provisions with their respective counterparts in EU law (with respect to both the implications and legal effects of art.267 TFEU (ex art.234 EC) and Court of Justice case law); to examine the similarities and differences between those two mechanisms; to show legal difficulties that may arise owing to the proposed advisory opinion procedure; and to explore the extent to which Strasbourg could use Court of Justice case law to develop its advisory opinion jurisdiction further.
Keywords: European Convention on Human Rights, Court Reform, Court of Justice of the European Union, Advisory opinions, Preliminary reference procedure, Draft Protocol No. 16 to the Convention
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