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The relationship between the European Court of Justice and European Court of Human Rights is an issue in European Union law and human rights law. The European Court of Justice rules on European Union (EU) law while the European Court of Human Rights rules on European Convention on Human Rights which covers the whole of Europe, not just the EU, but not the institutions of the European Union. The Court of Justice thus treats the Court of Human Rights are a de facto upper court in order to keep case law aligned. The EU is currently in the process of formally joining the convention.

Contents

Position of the European Union

The EU's Court of Justice in Luxembourg

The European Union (EU) is not a member of the Council of Europe[1] and the European Union takes the view that while it is bound by the European Convention it is not bound by the rulings of the European Court of Human Rights.

The European Court of Justice (ECJ) gives the European Convention on Human Rights "special significance" as a "guiding principle" in its case law.[2] The European Court of Justice uses a set of general principles of law to guide its decision-making process. One such principle is respect for fundamental rights, seen in Article 6(2) of the Treaty Establishing the European Union (Maastricht Treaty): "The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States, as general principles of Community law."[3] Within this framework, the European Court of Justice uses all treaties that the Member States of the European Union have sign or participated in as interpretive tools for the content and scope of "fundamental rights," while holding the European Convention on Human Rights as a document with "special significance."[4]

As seen in Article 6(2) of the Maastricht Treaty, quoted above, the European Union is bound to respect fundamental rights principles. This means that the institutions of the European Union must not violate human rights, as defined by European Union law, and also that the Member States of the European Union must not violate European Union human rights principles when they implement Union legislation or act pursuant to Union law.[5] This obligation is in addition to the Member States' pre-existing obligations to follow the rulings of the European Court of Human Rights in everything they do.

In practice, this means that the Court of Justice weaves the Convention principles throughout its reasoning. For example, in the Baumbast case, the Court held that when a child has a right of residence in a Member State according to Union law, this also means that his parent(s) should also have a right of residence due to the principle of respect for family life enshrined in Article 8 of the European Convention on Human Rights.[6]

Position of the European Court of Human Rights

The ECHR in Strasbourg

The European Court of Human Rights is prepared to hold a state liable for observing EU law but because European Law offers an equivalent level of protection to human rights the European Court of Human Rights will presume a state action to be justified unless manifestly deficient.

EU accession to ECHR

Protocol 14 of the ECHR, fully ratified in 2010 and due to enter force on 1 June 2010 allows the European Union to accede to the European Convention on Human Rights which the European Court of Human Rights enforces.[7] The EU's Treaty of Lisbon, in force since 1 December 2009, permits the EU to accede to said convention. The EU would thus be subject to its human rights law and external monitoring as its member states currently are. It is further proposed that the EU join as a member of the Council of Europe now it has attained a single legal personality in the Lisbon Treaty.[8][9]

At their Warsaw Summit in 2005, the Heads of State and Government of all Council of Europe member states reiterated their desire for the EU to accede without delay to ensure consistent human rights protection across Europe. There are also concerns about consistency in case law - the European Court of Justice is treating the Convention as part of the legal system of all EU member states in order to prevent conflict between its judgements and those of the European Court of Human Rights.

In March 2010 the EU took the first step to acceding to the convention with the European Commission drawing up the negotiating mandate. However it is doubtful it will complete accession for many years due to a number of practical questions. In particular, the new relationship between the two courts, for example: what would happen if a case on EU law were referred from a national court to the ECHR without going via the ECJ; that the ECJ does not rule on EU foreign policy matters while the ECHR may be able to; and to what extent are member states liable for actions carried out in the EU's name.[10]

Furthermore there is the possibilities of different or conflicting rights in the Convention and the EU's Charter of Fundamental Rights, or when two individual rights conflict with each other. The Commission will also be open to ECHR cases on its anti-trust actions against corporations. The Commission also wants to make sure that both the EU and a member state is represented in court if a case concerns one. Then there are the extra protocols of the convention, as not all member states have signed up to all the protocols so there is a question of how many the EU should sign up to.[10]

Finally, there is the selection of a judge from the EU to sit in the ECHR, how many MEPs should sit in the Parliamentary Assembly of the Council of Europe for that selection, how much membership will cost and how to pay that.[10]

See also

References

  1. ^ Dov Goldhaber, Michael, A people's history of the European Court of Human Rights, p176
  2. ^ Anthony Arnull, The European Union and Its Court of Justice 339-40 (2006)
  3. ^ Treaty on European Union, OJ C 191 [1992]
  4. ^ Nold v. Commission, Case 4/73 [1974] ECR 491.
  5. ^ Hoescht v. Commission, [1989] joined Cases 46/87 and 227/88
  6. ^ Baumbast and R. v. Secretary Of State For The Home Department [2002] ECR I-7091
  7. ^ [1]
  8. ^ Juncker, Jean-Claude (2006). "Council of Europe - European Union: "A sole ambition for the European continent"" (PDF). Council of Europe. http://assembly.coe.int/Sessions/2006/speeches/20060411_report_JCJuncker_EN.pdf. Retrieved 5 August 2008. 
  9. ^ "Draft treaty modifying the treaty on the European Union and the treaty establishing the European community" (PDF). Open Europe. 24 July 2007. http://www.openeurope.org.uk/research/translation.pdf. Retrieved 5 August 2008. 
  10. ^ a b c http://euobserver.com/9/29711
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