The Past, Present and Future of the Relation between the European Court of Justice and the European Court of Human Rights
Forthcoming in 35 Yearbook of European Law (2016)
iCourts Working Paper Series No. 37
31 Pages Posted: 3 Dec 2015 Last revised: 12 Apr 2017
Date Written: December 1, 2015
Opinion 2/13, by which the CJEU declared incompatible with the EU treaties the long-negotiated draft agreement on EU accession to the ECHR, came as a shock to many observers. Yet, the relation between the ECJ and the ECtHR has a glorious past, and can continue to have a bright future. While the dust kicked up by Opinion 2/13 settles, the article takes a step back and puts the ruling of the CJEU in a wider context. It recalls the long-standing historical relations between the CJEU and the ECtHR, and discusses the possible scenarios that may open up in the future. In particular, it claims that, even in the aftermath of Opinion 2/13, a virtuous competition between the CJEU and the ECtHR can have beneficial effect for the protection of fundamental rights, as evidenced by the case of judicial review of targeted UN sanctions. At a time of increasing frustration and preoccupation on the relation between the CJEU and the ECtHR, the article strikes a note of optimism, suggesting that the interaction between the two European supranational courts can still play a positive role for fundamental rights in Europe.
Keywords: European Court of Justice, European Ct HR, Accession agreement, Opinion 2/13, judicial dialogue
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