Tuesday 1 February 2011

Common Statement CJEU and ECtHR

Last week, the two main regional European Courts, the Court of Justice of the European Union, in Luxembourg, and the European Court of Human Rights, in Strasbourg, issued a joint communication which gives in insight in the contours of some of the consequences of EU Accession to the ECHR on the relation between the two courts. The joint communication goes into the two different situations that may arise.

The first concern so-called direct actions in which individuals complain about actions of the EU institutions themselves. In those instances the rule of exhaustion of domestic remedies would entail that applicants should first address the EU Courts under EU Law. One may note that the label "domestic" becomes an ironic name-tag, with the domestic area in question covering more than half of all ECHR state parties.

The second would relate to the indirect actions in which people complain about the acts of EU member states in implementing EU law. In those cases, legal proceedings are on the national level with the possiblity, and in some cases the obligation, for national judges to ask the CJEU for a preliminary ruling. In the very rare cases in which this would not happen but nevertheless an issue of EU law was clearly at stake, the Court have agreed now that a procedure should be put in place for those case enabling the CJEU to pronounce itself (a so-called "internal review") before the ECHR adjudicates the case. The parties in he case would then, in the Strasbourg proceedings, be able to submit observations on the CJEU's pronouncement. In practice this will be a relatively rare matter, but it might lead to an interesting legal tango for Strasbourg and Luxembourg. Importantly, the Courts stress that no amendment to the ECHR is needed (the long Protocol 14 ratification nightmare seems still fresh in the minds of everyone concerned).

The statement also re-emphasizes that with the growing importance of the Charter of Fundamental Rights of the European Union in CJEU jurisprudence, it is crucial to ensure the coherence between overlapping provisions of the Charter and the ECHR.

And so the rapprochement between two of the world's most effective international courts continues.