The ECJ and ECHR Relationship

Relationship Between The ECJ And ECHR As A Legal System

On one hand are all member-states of the EC/EU also parties to the ECHR and accepting the jurisdiction of the EctHR, on the other hand, the legal system of the European Community itself is not bound by the ECHR – in any other sense than that ECHR and the case-law of the EctHR can be seen as a part of the common constitutional traditions of the member-states – and the EC has never been deemed competent to accede to the ECHR.

The ECJ regards the European Convention on Human Rights as if it had legal force for the European Union, and particularly over the past ten years follows very closely, regularly cites, and systematically seeks to apply, the case-law of the ECHR. I will write on this more below. the EU is a decentralised system in which the exercise of the EU’s powers, in relation to individuals and undertakings, is almost always entrusted to Member States. In most cases the legality of Member State action can be reviewed by the ECJ, either directly at the suit of the European Commission or indirectly on a reference from a national court. In the course of that review the ECJ can examine the conformity of the Member State action, or of the underlying EU measure, with the ECHR. And the conduct of the Member States, when exercising those powers, can in principle be subject to further review by the ECHR, as was demonstrated in its Bosphorus judgment of 30 June 2005

The ECJ has spelled out such norms with reference to some more specific constitutional norms or treaty of human rights, but refused to regard them as unconditionally binding.28 It seems even more common that the General Advocate in refers to the ECHR in its advisory opinions, even if the ECJ itself often avoids to mention the ECHR explicitly. There has sometimes been argued that the fact that since all memberstates have accepted the ECHR as well as the jurisdiction of the EctHR and that most of the memberstates have entered the EU after ratifications of the ECHR, they cannot be assumed to have delegated any power that would violate the ECHR and thus the EC/EU should also be regarded as being bound by it. It should however be noticed that the ECJ explicitly rejected the line of reasoning of AG Werner in Hauer where he argued that the establishment of the European Community by definition could delimit the protection of rights established under the national constitutions and the ECHR and that the protection of rights under EC-law therefore always would have to reach the highest national protection of constitutional and human rights. That was regarded as an argument too radical to be adopted, however the ECJ reiterated in a number of cases the position that the rights protected under ECHR was an integral part of the community legal order.

The relation between the ECHR and EC-law has been mentioned in anumber of cases from the ECJ where the consistent line this far of the ECJ has been that the rights protected by the ECHR is an integral part of the

legal order of the European Community since ECHR is a part of the common constitutional traditions of the member-states. However, it should be noticed that the ECJ has never accepted the argumentation that it in turn would make the ECJ obliged to regard ECHR as a part of EC-law that creates duties on the institutions of the community, and the ECJ has never claimed to be bound by EctHR’s interpretations of the ECHR. The court has also explicitly rejected that the decisions of EctHR can have any binding effect on the EC, but it has usually avoided infringing rights in ways that would lead to the memberstates being held liable in the EctHR. The view of the ECJ that the supremacy of EC-law by definition means that it also takes precedence over constitutional norms aimed at protecting human rights has been increasingly moderated in the sense that EC-law has been said to incorporate norms of human rights common to the constitutional traditions of the member states.

In formulating the fundamental rights that form part of EU law, the ECJ has said that the ECHR has “special significance”.

In the field of EU law, the effect of this development is profound. Fundamental rights which are treated as an integral part of EU law can be used to challenge the validity of EU legislation or the actions of the EU institutions. So, for example, in Ellinki Radiophonia Tileorassi (ERT) [1991] I-2925, the ECJ held that where a Member State seeks to derogate from freedom of establishment and freedom to provide services, its justification for doing so must be compatible with the general principles of EU law, including (on the facts of that case, which concerned exclusive television rights) Article 10 of the ECHR.

The precise field of application is not easy to define, but fundamental rights in EU law have been applied to:

(a) Community measures, such as Commission decisions, Regulations and Directives.

(b) National measures which implement EU law; e.g. measures taken to implement a Directive.

(c) National measures restricting (where permitted) EU law; e.g. restrictions on the free movement of good under Article 28, permitted by Article 29.

Outside this field of application, however, fundamental rights in EU law have no effect .

While on one level, the approach adopted by the ECJ in developing the notion that fundamental rights are an integral part of EU law is welcome, it is not without difficulties and even tensions. In particular:

(a) The fact that fundamental rights in EU law are located in the framework of economic freedoms meant that the approach taken to them, and in particular the need to balance rights against one another and against the wider public interest, is not always as exacting as it would be under systems devised specifically to protect human rights.

(b) The insistence by the ECJ that EU law always takes precedence over national law, even when the latter consisted of a fundamental rights provision entrenched in a national constitution, means that, where there is conflict, the less exacting EU approach can prevail.

(c) The fact that fundamental rights in EU law only exist as and when recognised and declared by the ECJ on a case by case basis leads to uncertainty about their definition and scope.

NumerousCurrently the Council oEconventions are regarded by ECJ as part of the acquis, . This type of legal cooperation become more proactive after the extension of ECJ competencies to several areas previously reserved to cooperation between the Member States of the CoE (such as justice and home affairs). Among the documents which led to this it is worth mentioning the 1987 Arrangement between the Co Eand the EC and the 2001 Joint Declaration on Cooperation and Partnership, as well as the MoU between the CoE and the EU signed in 2007.

The latter document is basically related to setting of common legal standards and legal cooperation between the ECJ and ECHR . in such areas as the rule of law, and fundamental freedoms, .

This has been done in order to ensure a uniform application of legal standards between the acquis and the relevant CoE standards , in particular, in a view that the acquis should be consistent with such basic documents as the European Convention on Human Rights .

However, this cooperation has a lack of reciprocity, e.g. CoE representatives are not entitled to attend EU Council working groups or to participate in the meetings of the COREPER (even as observers). but not vice versa,

However, the CoE had been consulted on ad hoc basis by the Commission through the involvement of NGO’s working with the CoE in the field of human rights, e.g. on conflicts of jurisdiction in criminal proceedings, presumption of innocence, certain procedural rights in criminal proceedings.

However, it should be noted that consultations have not systematically covered all new legaL instruments concerning matters where the responsibilities of the two organisations coincide or complement one another.

That was regarded as an argument too radical to be adopted, however the ECJ reiterated in a number of cases the position that the rights protected under ECHR was an integral part of the community legal order.