Thursday 10 May 2012

Functional Analysis of ECJ-ECtHR Relationship

Tommaso Pavone of the University of Chicago has posted a very interesting research paper on the functional relationships between the two main European Courts. The paper, posted on SSRN, is entitled 'The Past and Future Relationship of the European Court of Justice and the European Court of Human Rights: A Functional Analysis'. This is the abstract:

The European legal order is often plagued by complexity and an unnecessary duplication of institutional and legal provisions. European human rights law, with its source both in the Treaties of the European Union and the Council of Europe’s European Convention of Human Rights (ECHR), would appear to be evidence of this pathological problem. Namely, the EU’s European Court of Justice (ECJ) and the Council of Europe’s European Court of Human Rights (ECtHR) have jurisdiction over different human rights instruments even though their territorial jurisdiction overlaps. The concern is that this engenders two different bodies of law, subjecting European states to dual, and possibly contradictory, regulations, which may not be uniformly interpreted because of the divergences in the respective functions and mandates of the two European courts. In this light, the EU’s 2009 Lisbon Treaty took action to unify the two regimes by initiating proceedings for the EU to accede to the ECHR. This paper argues that the significance of these reforms is likely to be more symbolic than substantive. In actuality, the legal order pre-Lisbon treaty was an extremely functional institutional and legal system that provided for the uniform development of European human rights law. It was characterized by a functional division of labor between the ECJ and the ECtHR that also provided private litigants with an opportunity to forum shop. Further, the two Courts developed customary practices to ensure both inter-court comity and interpretational convergence, helping to create a uniform body of European human rights law. Therefore, I conclude that the EU’s accession to the ECHR is mostly a symbolic and political reform rather than a substantive legal one. The only substantive benefit of accession is the introduction of external review of ECJ direct action cases by the ECtHR. However, this benefit is likely to come at the cost of an erosion of comity between the two European courts.