One of the most significant developments brought about by the Lisbon Treaty is the legally binding status of the Charter of Fundamental Rights of the EU [PDF]. While broadening the scope of human rights protection within the EU, this development has raised a question of overlapping jurisdiction: there are now two equally binding legal texts, the Charter of Fundamental Rights of the EU (CFR) and the European Convention of Human Rights (ECHR), and two corresponding European courts, the European Court of Justice (ECJ) and the European Court of Human Rights (ECtHR), concerned with human rights protection. As a result, the following questions must be considered: what are the different roles played by the ECJ and the ECtHR in human rights protection in the EU, what are the reasons for these differences and how these different roles affect the relationship between the two courts.
CFR and ECHR: the Two EU Human Rights Protection Texts
The enhanced role of the ECJ in human rights protection resulting from the Lisbon Treaty called attention upon the relationship between the two legal texts protecting human rights in the EU.
Art. 52(3) of the CFR states that, wherever the charter contains rights that correspond to the ECHR, "the meaning and scope of those rights shall be the same" as that granted by the convention. However, in what has been defined as an "unsolved paradox," Art. 52(3) also enables the ECJ to provide "more extensive protection" than that granted by the ECHR. Art. 53 of the CFR further includes a non-regression clause by which the charter must not to be interpreted as "restricting or adversely affecting" the human rights recognized in the convention.
The reason behind the widened scope of human rights protection granted to the ECJ by Art. 52(3) can be found in the different rationales behind the two European courts. These distinctions in rationale can be made both on the theoretical and on the practical level.
ECJ and ECtHR: Different Theoretical Rationales
From a theoretical perspective, while the ECJ can be seen as an integrative agent, striving for further EU harmonization, the ECtHR's mandate is that of providing a minimum human rights standards protection, beyond which wider scope is left for pluralism and national sovereignty within the EU. "If the function of the ECJ is to help build unity ... [that] of the ECtHR is to help build a community." This can help to understand the reason behind the "paradox" of Art. 52(3): the ECHR is merely seen as a "floor, rather than a ceiling," of EU human rights protection, while the ECJ may want to leave itself a wider margin of appreciation, given its more integrative role in the European context, and the fact that it is an institution of the EU, rather than rising from an agreement between European states, like the ECtHR is.
ECJ and ECtHR: Different Practical Effects
From a practical perspective, the effects of adverse ruling by the ECJ and by the ECtHR are also different. When a national piece of legislation is found to be violating EU law or the convention, national states should in principle repeal it or amend it. But while the ECJ can refer to the EU principles of supremacy, direct effect and state liability which ensure that, generally speaking, national legislation inconsistent with EU law is actually changed; these principles have no equivalent in the convention of the ECtHR. Given the lack of a well-established system of application of ECtHR judgments, which does exist for ECJ judgments, implementation of the former is much more dependent on national states discretion and on their national constitutions. Thus, an adverse ECtHR ruling will result in a "more gradual (and perhaps less politically costly) implementation" of the decision than in the case of an adverse ECJ ruling. This practical characterization of the ECJ as an active invasive agent, directly intervening in national legislation, as distinguished from the ECtHR more passive role, which leaves wider scope to national states implementation, further explains and helps to understand the powers of expansion granted to the ECJ by Art. 52(3) CFR.
Criticisms: the ECJ is not Primarily a Human Rights Court
The expansion of the ECJ powers in human rights protection has nonetheless raised substantial criticism. As it has been stressed, human rights in the EU have traditionally been a secondary concern, "an offshoot of the EU's more central, market-led functions."
Hence, when the charter became legally binding, this traditional vision of the EU as an economic integrator led to skepticism on its genuine commitment to promote human rights rather than merely using them as means to strengthen EU law. This was also seen as an invasion of the EU in politically sensitive areas (as that of human rights often is) on which Member States are generally willing to retain their sovereignty and discretion .
The ECJ Approach to ECtHR Rulings: Referring to ECtHR While Stepping Further
The ECJ's delicate position in the human rights context, together with the fact that, after accession to the ECHR, the ECJ will be subject to the ECtHR external review, gave the ECJ a strong incentive to preserve its credibility in the human rights domain by trying to ensure interpretational convergence with the ECtHR. The adoption of a similar approach to the ECtHR strengthens the ECJ's legitimacy and helps to avoid the embarrassment of its judgments possibly being overturned by the ECtHR.
As a consequence, cross-references between the two courts have been increasing over time, reaching 57 mentions [PDF] of the ECHR in ECJ judgments over 2010-2011. There seems to be a determination by both EU courts to avoid conflict with and to demonstrate deference to the other court court, contributing to the creation of a "uniform human rights standard."
In some cases the ECJ seems indeed to have made use of the right provided by Art. 52(3) CFR, granting more extensive rights than those provided by the ECHR. In these "broadening" cases, the ECJ emphasized that its ruling was meant not in conflict with the ECtHR precedent, but beyond it. By widely referring to the ECtHR precedents, in several cases it recalled the importance of taking it as a starting point, allowing itself to expand the right at stake, but not to depart from it.
ECJ References to ECtHR: Selected Case Law
This attention to ECtHR case law is evident both in cases where the ECJ restricted human rights, adhering to the ECHR minimum standard, and in cases where the ECJ went further, broadening human rights protection. ECJ references to the ECtHR mostly concerned the right to privacy (Art. 8 ECHR) and the right to a fair trial (Art. 6 ECHR) .
In J. McB v L.E. , for example, the ECtHR precedent in Guichard v France was used by the ECJ to give a restrictive interpretation of Art. 7 CFU (corresponding to Art. 8 ECHR). The court expressly stated that "Art. 7 of the Charter must ... be given the same meaning and the same scope as Art. 8(1) of the ECHR, as interpreted by the case-law of the ECHR."
DEB involved instead an expansion of the right of effective judicial protection. After having engaged in a thorough analysis of ECtHR case law, the ECJ eventually relied mainly on Art. 47 of the charter to expand the right to legal aid also to legal persons and not only to natural persons, thus reaching an outcome that did not clearly emerge from the ECtHR jurisprudence. Also in this case, however, the court devoted wide attention to ECtHR case law: "the meaning and the scope of the guaranteed rights are to be determined not only by reference to the text of the ECHR, but also, inter alia, by reference to the case law of the European Court of Human Rights."
In Volker, which also involved an expansion of human rights in the area of data protection, the ECJ quoted several ECtHR cases to support a broad interpretation of Art. 7 and 8 CFU, and to determine the scope of the proportionality test concerning justifications for restrictions.
The consequences of the Lisbon developments in EU human rights protection still need to be fully assessed. New light can be shed on these changes, and in particular on the ECJ possibility to expand human rights protection, if they are contextualized in a broader framework of other developments, like the creation of EU citizenship. These tendencies seem to widen the very concept of EU beyond that of a mere economic community. The fact that the European Council has for the first time adopted, in June 2012, a unified Strategic Framework on Human Rights and Democracy, which includes a practical Action Plan, suggests that a general shift of the EU from a purely economic union to a political one might be taking place. If that is the case, the consequences are likely to have far-reaching implications relevant to our daily lives as EU citizens.
Elena Butti studies international law and anthropology, focusing on human rights, at the University of Utrecht. At the University of Utrecht, Butti serves as the Director of External Relations in the Law Society. Currently, she studies at the Summer Institute for International Law & Policy.
Suggested citation: Elena Butti, The Roles and Relationship between the Two European Courts in Post-Lisbon EU Human Rights Protection JURIST - Dateline, Sept. 12, 2013, http://jurist.org/dateline/2013/09/elena-butti-lisbon-treaty.php.
This article was prepared for publication by Elizabeth Imbarlina, the head of JURIST's student commentary service. Please direct any questions or comments to her at firstname.lastname@example.org