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Title of thesis: The interaction between the duties flowing from the principle of sincere cooperation under Article 4(3) TEU on the Member States of the European Union and the advisory opinion procedure under Protocol No. 16 to the European Convention on Human Rights.
Student name: Clodagh Hunt-Sheridan. Email: clodagh.huntsheridan@live.ie. Student number: 12652059.
Track: European Union Law.
Supervisor: Dr. Thomas Vandamme. Date of submission: Friday, 24 July 2020. Word count: 12633.
Abstract
The preliminary reference procedure in Article 267 TFEU has been essential to legal integration in the European Union. Engaging with this procedure is one of the duties that Member States owe to the EU under the principle of sincere cooperation in Article 4(3) TEU. This procedure has served as inspiration for the advisory opinion mechanism in Protocol No. 16 to the ECHR. This article critically examines whether national courts are complying with the duties flowing from the principle of sincere cooperation when they engage with this mechanism, particularly when a fundamental right finds analogous protection under both the Charter of Fundamental Rights and the European Convention on Human Rights. To this end, a comparison between the two procedures is undertaken, followed by an examination of the duties owed by the Member States to the EU under the principle of sincere cooperation. Then, both the possible procedural conflicts and the possible substantive conflicts are considered. It is concluded that Member State courts will be bound by the doctrine of primacy in most situations; however, where neither court has interpreted the right, it is advised that the national courts engage with the advisory opinion procedure before the preliminary reference procedure. This approach would facilitate a high, consistent, standard of fundamental rights protection across the European continent.
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Contents
1. Introduction ... 3
2. Article 267 TFEU: the preliminary reference procedure: ... 5
A. Questions that can be referred ... 6
B. Courts or tribunals which can refer ... 6
C. Courts or tribunals which must refer ... 7
D. Binding nature of judgments ... 8
3. Protocol No. 16 to the European Convention on Human Rights: the advisory opinion procedure: ... 9
A. Highest courts and tribunals ... 11
B. Non-binding nature of the opinion ... 13
C. Reducing the Court’s workload... 14
4. Sincere cooperation:... 15
A. The duty of sincere cooperation owed by the Member States to the EU ... 17
5. Conflict zone: ... 18
A. Procedural conflict ... 19
B. Substantive conflict ... 20
I. Substantive conflict: the ECJ’s approach: ... 23
II. Substantive conflict: the ECtHR’s approach: ... 24
III. Substantive conflict where neither court has interpreted the relevant right: ... 26
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1. Introduction
All of the Member States in the EU are High Contracting Parties to the European Convention on Human Rights (‘ECHR’). The individual complaints procedure of the European Court of Human Rights (‘ECtHR’) has been considered a successful enforcement mechanism for many years. For individuals, it is a court of last resort, whereby appeals can be made to the court in Strasbourg provided that domestic remedies within the High Contracting Party have been exhausted. It is essential that the authorities of the High Contracting Party apply the judgments of the ECtHR within the domestic legal order. However, an increasing caseload burden led to the adoption of Protocol No. 16 ECHR (‘Protocol No. 16’). This Protocol came into force on 1 August 2018. To date, 15 High Contracting Parties have ratified the Protocol, and only two requests have been made.1 The advisory opinion procedure was devised to provide national
courts with guidance on the interpretation and the application on the ECHR. It took its inspiration from the preliminary reference procedure, but has been tailored to suit the Convention system.
The preliminary reference procedure can be found in Article 267 TFEU and is an essential mechanism within EU law. It has been essential to European legal integration, allowing national courts to ask the European Court of Justice (‘ECJ’) questions relating to the interpretation and validity of EU law. When the ECJ hands down a judgment in the preliminary reference procedure, the national courts are under a duty to take necessary measures to ensure the fulfilment of their obligations flowing from EU law. This duty flows from the principle of sincere cooperation, laid down in Article 4(3) TEU.
The focus of this paper is how the operation of Protocol No. 16 relates to the obligation of sincere cooperation on the national judiciaries of the Member States of the European Union. While many scholars have considered how this Protocol will interfere with the autonomy of the EU legal order, this issue has not been adequately addressed in the literature to date.2
Firstly, the EU’s preliminary reference procedure in Article 267 TFEU will be examined. The nature of questions that can be referred and the courts and tribunals which can, and in some
1 The first of these references was made by the French Cour de cassation in 2018: Request no. P16-2018-001,
‘Advisory opinion concerning the recognition in domestic law of a legal parent-child relationship between a child born through a gestational surrogacy arrangement abroad and the intended mother’, 10 April 2019. The second request was made by the Armenian Constitutional Court: Request no. P16-2019-001, ‘Advisory opinion concerning the use of the “blanket reference” or “legislation by reference” technique in the definition of an offence and the standards of comparison between the criminal law in force at the time of the commission of the offence and the amended criminal law’, 29 May 2020.
4 cases, must, refer is quite broad. As well, the judgments rendered under the procedure are binding on the national courts of the Member States. Considering this, the mechanism is quite powerful. It served as the inspiration for the design of Protocol No. 16, which will be examined secondly, but the mechanism in this Protocol was tailored to the peculiarities of the Convention system. Protocol No. 16 is a prima facie similar procedure, but it has a number of features which distinguish it from the preliminary reference procedure. The courts are designated by the national authorities, and the advisory opinions are not binding on the referring courts. Despite this non-binding nature of the opinions, one of the objectives of the Protocol is to reduce the workload of the Court. As a result, it will be considered whether or not the advisory opinion mechanism is the best tool with which to achieve this goal.
The principle of sincere cooperation is a central constitutional principle in the EU, found in Article 4(3) TEU. It imposes a number of duties upon the Member States, including the proper implementation and application of EU law, the doctrine of primacy, the doctrines of direct and indirect effect and the use of preliminary references. The focus will be on, thirdly, the duties owed by the Member States to the EU under the principle, and how the principle of sincere cooperation can also act as a limit on the national procedural autonomy of the Member States. Fourthly, the potential procedural conflicts and substantive conflicts between the two procedures, in light of the principle of sincere cooperation, will be examined. In the procedural conflict section, courts competent under both the preliminary reference procedure and Protocol No. 16 will be in the conflict zone. In the substantive conflict section, a number of scenarios will be considered: what should happen when one court or the other has interpreted the content of a right which finds analogous protection under both the ECHR and the Charter, and what should happen when neither court has interpreted the content of such a right. The subject matter of a valid request under Protocol No. 16 could only be one about the rights and freedoms guaranteed by the ECHR, and not EU law, because the ECtHR is not competent to interpret EU law.3 However, difficulties may arise when rights protected under the Convention also
find protection in the Charter of Fundamental Rights of the EU. Within the EU, the Charter is the ‘most important’ source of fundamental rights protection.4 This section attempts to answer
the question of which order the references should be made.
3 Johan Callawaert, ‘Protocol No. 16 and the Autonomy of EU law: who is threatening whom?’ 3 October 2014, https://europeanlawblog.eu/2014/10/03/protocol-16-and-the-autonomy-of-eu-law-who-is-threatening-whom/,
accessed 8 April 2020.
4 Paul Craig and Gráinne de Búrca, EU Law: Text, Cases and Materials (6th edn, Oxford University Press 2015)
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2. Article 267 TFEU: the preliminary reference procedure:
The preliminary reference procedure under Article 267 TFEU has played a central role in European integration, as well as contributing to the harmonisation of EU law across the Union.5
The procedure not only serves to ensure a uniform interpretation of EU law across the Union; it also provides assistance to national courts regarding the interpretation of EU law and it provides an ‘ex post verification’ of the validity of secondary EU law with primary EU law.6
It has been described by the ECJ as a ‘keystone’ of the EU legal order.7 A preliminary reference
arises when a private party brings a case before their national court; the national court then determines that EU law is relevant to the case, and the national court asks the Court of Justice of the European Union to interpret EU law.8
The ECJ considers this procedure to be founded in cooperation.9 When the ECJ renders
judgment, the national courts are expected to implement this ruling within the domestic legal order on the basis of the principle of sincere cooperation, found in Article 4(3) TEU.10 In
CILFIT, the ECJ emphasised that the duties and obligations under the preliminary reference procedure are ‘based on cooperation, established with a view to ensuring the proper application and uniform interpretation of Community law in all the Member States, between national courts, in their capacity as courts responsible for the application of Community law, and the Court of Justice’.11
First, the nature of the questions which can be referred will be considered. This will be followed by a distinction between the courts which have a discretion to refer and those under an obligation to refer. Finally, the binding nature of the ECJ’s preliminary reference judgments will be examined.
5 Janneke Gerards, ‘Advisory Opinions, Preliminary Rulings and the New Protocol No. 16 to the European
Convention on Human Rights: A Comparative and Critical Appraisal’ (2014) 21 Maastricht Journal of
European and Comparative Law 630, 640.
6 European Parliament Briefing, ‘Preliminary reference procedure’ July 2017,
https://www.europarl.europa.eu/RegData/etudes/BRIE/2017/608628/EPRS_BRI(2017)608628_EN.pdf,
accessed 29 April 2020. This indirect ex post verification of the validity of secondary EU law with primary EU law is in addition to direct actions before the CJEU, such as Article 263 TFEU.
7 Opinion 2/13, Accession of the EU to the ECHR [2014], para. 176. See also, Clelia Lacchi, ‘The ECtHR’s
Interference in the Dialogue between National Courts and the Court of Justice of the EU: Implications for the Preliminary Reference Procedure’ (2015) 8 Review of European Administrative Law 95, 97.
8 Clifford J. Carrubba and Lacey Murrah, ‘Legal Integration and Use of Preliminary Ruling Process in the
European Union’ (2005) 59 International Organization 399, 400.
9 Case C-283/81 Srl CILFIT and Lanificio di Gavardo SpA v. Ministry of Health [1982] ECR I-03415, para. 7. 10 Matteo Bonnelli, ‘The Tarrico saga and the consolidation of judicial dialogue in the European Union’ (2018)
25 Maastricht Journal of European and Comparative Law 357, 368.
6 A. Questions that can be referred
According to Article 267(1) TFEU, a national court may refer a question on the interpretation or validity of EU law to the ECJ.12 The ECJ can only decide on issues of EU law, and thus
does not ‘pass judgment on the validity of a national law’.13 The scope of questions for
preliminary ruling from national courts are not restricted to EU primary law; questions regarding the ‘acts of the institutions, bodies, offices or agencies of the Union’ may also be referred to the Court of Justice.14
However, a preliminary reference based on a hypothetical case will not be accepted by the CJEU, as the procedure is designed to assist national courts ‘to settle genuine disputes which are brought before them’.15 The refusal to answer hypothetical questions has its basis in
practical reasons, as some regard it as a ‘waste of judicial resources’ should the ECJ give a ruling in a hypothetical case as the problem may never in fact transpire.16 There may also be
conceptual problems if hypothetical questions were posed to the Court: it may not be clear who the parties to the action would be, and the relevant arguments may not be put forward.17 The
Court of Justice has held that, if it were to answer hypothetical questions, it would be exceeding its jurisdiction.18
B. Courts or tribunals which can refer
According to Article 267(2) TFEU, where a national courts considers that a preliminary reference is necessary to ‘enable it to give judgment’ in the case at hand, it has the widest discretion to refer questions to the ECJ. Within the EU legal order, the relationship between domestic courts and the CJEU is ‘reference-based’; it is not an appeal system.19 This is due to
the fact that the individual has no standing to appeal directly to the CJEU, and that it is for the national court to decide whether or not to refer and it is the national court which ultimately resolves the dispute, applying the Court’s judgment to the case before it.20 Any national court,
which falls within the autonomous EU law definition of a ‘court or tribunal’, can refer a
12 Article 267(1) TFEU: “The Court of Justice of the European Union shall have jurisdiction to give preliminary
rulings concerning: (a) the interpretation of the Treaties; (b) the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union”.
13 Craig and de Búrca (n 4), 466. 14 Article 267(1)(b) TFEU.
15 Case 104/79 Pasquale Foglia v. Mariella Novella [1980] ECR I-00745, para.11. 16 Craig and de Búrca (n 4), 490.
17 Ibid.
18 Case C-83/91, Wienand Meilicke v. ADV/ORGA F.A. Meyer AG [1992] ECLI:EU:C:1992:332, para. 33. 19 Craig and de Búrca (n 4), 464.
7 question for preliminary ruling to the ECJ.21 In Dorsch Consult, the ECJ held that the factors
relating to the autonomous definition of a ‘court or tribunal’ include ‘whether the body is established by law, whether it is permanent, whether its jurisdiction is compulsory, whether its procedure is inter partes, whether it applies rules of law and whether it is independent’.22 As
such, ‘national categorisation is not conclusive’.23
As noted above, the basis of the procedure lies in non-hierarchical cooperation between the national courts and the Court of Justice. The Luxembourg Court has held that the discretion to refer is ‘an inherent part of the system of cooperation’.24 Any national rule that renders ‘the
application of the preliminary reference procedure impossible in practice and is not reasonably justifiable must be set aside’.25 Neither national law nor higher national courts can limit ‘the
freedom of a court to refer’.26 Should domestic authorities mandate that competent national
courts use the advisory opinion mechanism found in Protocol No. 16 prior to using the preliminary reference system, this could prejudice the operation and usefulness of the EU law procedure.
C. Courts or tribunals which must refer
Article 267(3) TFEU states that courts of last instance, in the concrete case, are under an obligation to refer questions for preliminary ruling to the EU, provided that an interpretation of EU law or a decision on the validity of EU law is necessary ‘to enable judgment to be given’.27 Once again, whether a court or tribunal is under an obligation to refer depends on the
autonomous EU law concept ‘of a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law’.28 The rationale behind a provision such as
Article 267(3) TFEU is to ensure that national case law in the Member States is developed in accordance with EU law.29
21 Case C-106/77, Amministrazione delle Finanze dello Stato v. Simmenthal SpA [1978] ECR I-00629, para. 21. 22 Case C-54/96 Dorsch Consult Ingenieurgesellschaft mbH v. Bundesbaugesellschaft Berlin mbH [1997] ECR
I-04961, para. 23.
23 Craig and de Búrca (n 4), 466.
24 Case C-689/13 Puligienica Facility Esco SpA (PFE) v. Airgest SpA [2016] ECLI:EU:C:2016:199, para. 33. 25 Clelia Lacchi, ‘Multilevel Judicial Protection in the EU and Preliminary References’ (2016) 53 Common Market Law Review 679,684. See also Case C-173/09 Georgi Ivanov Elchinov v. Natsionalna
zdravnoosiguritelna kasa [2010] ECR I-08889, para. 27; Case C-689/13 Puligienica (n 24), para. 33.
26 Armin Cuyvers, ‘Preliminary References under EU Law’ in Emmanuel Ugirashebuja et al (eds.) East African Community Law: Institutional, Substantive and Comparative EU Aspects’ (2017 Brill), 277.
27 Craig and de Búrca (n 4), 466.
28 Article 267(3) TFEU. This does not necessarily have to be the highest court in the Member State’s legal
system, but can refer to the court of last instance in the concrete case. See Case C-6/64 Flaminio Costa v.
E.N.E.L. [1964] ECR I-01141.
8 Where a question of the interpretation or validity of EU law arises before a national court of last instance, they do not share the discretion under Art 267(2) TFEU; they are under an obligation to refer such questions to the ECJ for preliminary ruling. There are, however, exceptions to this obligation to refer, found in the Court of Justice’s CILFIT case law.30 Firstly,
if the question is not relevant and cannot affect the outcome of the case at hand, the court is no longer under an obligation to refer the question to the ECJ.31 Secondly, where ‘previous
decisions of the Court have already dealt with the point of law in question’, national courts are relieved of their obligation to refer, but remain at liberty to exercise their discretion to refer.32
Finally, if the national court considers that the answer to the question is ‘so obvious as to leave no scope for any reasonable doubt’, they are no longer bound to refer to the ECJ.33
D. Binding nature of judgments
When rendering a preliminary reference judgment, the Court of Justice provides an ‘authoritative interpretation’ of EU law, which is, in practice, binding erga omnes.34 The
preliminary reference rulings of the Court of Justice ‘are attributed general validity and binding force throughout the EU’.35 The ‘acte éclairé’ exception to refer questions to the CJEU is itself
premised on the idea that ‘preliminary rulings constitute binding authority’, as national courts of last instance are exempted from referring where the Court of Justice has dealt with the point of law in a previous decision.36 It is clear today that preliminary rulings from the Court of
Justice are binding on both the referring national court and all other national courts ‘dealing with the substance of the case in their application of EU law’.37
The roots of the binding nature of the preliminary rulings can not only be traced through the case law of the ECJ, but can also be inferred from the principle of sincere cooperation.38 The
main purpose of the preliminary reference procedure is to ensure that national courts apply EU
30 CILFIT (n 9).
31 Ibid, para. 10.
32 Ibid, paras. 14 and 15. This is known as the ‘acte éclairé’ doctrine. 33 Ibid, para. 16. This is known as the ‘acte clair’ doctrine.
34 Morten Broberg, ‘Judicial Coherence and the Preliminary Reference Procedure’ (2015) 8 Review of European Administrative Law 9, 10. See also Case 66/80 SpA International Chemical Corporation v. Amministrazione delle finanze dello Stato [1981] ECR I-01191.
35 Ibid. 36 Ibid, 11.
37 Paul Gragl, ‘(Judicial) love is not a one way street: the EU preliminary reference procedure as a model for
ECtHR advisory opinions under draft Protocol No. 16’ (2013) 38(2) European Law Review 229, 244. See also Case C-52/76 Luigi Benedetii v. Munari Fratelli s.a.s. [1977] ECR I-00063, para. 26; Case C-689/13
Puligienica (n 24), para. 38. 38 Ibid.
9 law uniformly.39 Thus, one can infer from the duty of sincere cooperation incumbent upon
national courts that, in order for EU law to be applied uniformly across the Union, it is necessary that preliminary reference rulings are binding on both the referring court and all national courts across the EU.
Undoubtedly, the operation of the preliminary reference mechanism today found in Article 267 TFEU has expanded the reach of EU law into domestic legal orders in a way which no other international legal order has been capable of doing thus far. It has been looked upon as inspiration for Protocol No. 16. However, through examination and comparison of the two procedures, one will see that while they are prima facie similar, they bear some significant differences.
3. Protocol No. 16 to the European Convention on Human Rights: the advisory
opinion procedure:
The objective underlying the implementation of Protocol No. 16 is that ‘upstream intervention will obviate the need for downstream intervention’.40 Should national courts of the High
Contracting Parties to the ECHR apply the Convention correctly on a domestic level, there ought to be no reason for an individual to file a complaint before the Strasbourg Court when the domestic procedure has been exhausted. The advisory opinion procedure is designed to provide assistance to the High Contracting Parties so as to avoid future violations, to aid the domestic courts in the interpretation of the ECHR, and to ‘enhance judicial dialogue’.41 The
aim and focus of Protocol No. 16 is that of ‘enhanced cooperation’ between the designated highest courts and tribunals and the ECtHR.42 This contrasts with the objective of the EU’s
preliminary reference procedure under Article 267 TFEU, which aims to provide a uniform application of EU law across the Union.43 Article 34 ECHR sets out the individual complaints
procedure.44 Given that this ordinary appeal procedure under the ECHR is hierarchical, it was
intended that Protocol No. 16 would change the relationship between the Strasbourg Court and
39 Case C-66/80 SpA International Chemical Corporation (n 34), para. 11.
40 Koen Lemmens, ‘Protocol No. 16 to the ECHR: Managing Backlog through Complex Judicial Dialogue’
(2019) European Constitutional Law Review 691, 692.
41 Síofra O’Leary and Tim Eicke, ‘Some Reflections on Protocol No. 16’ (2018) European Human Rights Law Review 220, 223.
42 Lemmens (n 40), 695.
43 Case C-66/80 SpA International Chemical Corporation (n 34), para. 11.
44 Article 34 ECHR: “The Court may receive applications from any person, non-governmental organisation or
group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.”
10 the domestic courts of the High Contracting Parties from a ‘purely hierarchical one to at least a partly cooperative one’.45
Among its objectives is for national courts to show more awareness of the Convention and its law and to apply it in the correct manner, which would, it is hoped, in turn decrease the ECtHR’s workload.46 The Protocol was designed to alter the current set-up of the ECtHR to
ensure ‘a more efficient administration of justice’.47 The procedure provides the ECtHR with
the possibility to clarify ECHR law and to develop general principles beyond the parameters of the individual facts of an individual case.48 While the procedure was inspired by the EU’s
preliminary reference procedure, and appears prima facie similar, it is not an exact replica. According to O’Leary and Eicke, it would not be practical to import the preliminary reference procedure into the Convention system.49 The preliminary reference mechanism represents ‘an
alternative model’ to the exhaustion of domestic remedies model under the ECHR.50
Introducing a form of preliminary reference into the ECHR system could be liable to increase the workload of the Court if any domestic court was capable of referring questions to the court in Strasbourg. As such, Protocol No. 16 reserves the competence to ask the ECtHR advisory opinions to nationally designated highest courts and tribunals. By introducing a voluntary mechanism, and by making the advisory opinions non-binding on the national courts, the Protocol No. 16 procedure is liable to foster and enhance dialogue between the national courts and the court in Strasbourg.51
Firstly, the courts deemed competent to ask the Strasbourg Court for advisory opinions will be considered, followed by an examination of the non-binding nature of such opinions. Finally, thought will be given as to whether the Protocol is truly capable of achieving its aim of reducing the ECtHR’s workload. An examination of the similarities and differences the Protocol shares with the preliminary reference procedure under Article 267 TFEU will be conducted throughout.
45 Thomas Voland and Britta Schiebel, ‘Advisory Opinions of the European Court of Human Rights:
Unbalancing the System of Human Rights Protection in Europe?’ (2017) 7 Human Rights Law Review 73, 74.
46 Gerards (n 5), 632.
47 Fisnik Korenica and Dren Doli, ‘A View on CJEU Opinion 2/13’s Unclear Stance on and Dislike of Protocol
No. 16 ECHR’ (2016) 22(2) European Public Law 269, 270.
48 O’Leary and Eicke (n 41), 227. 49 Ibid, 221.
50 Ibid.
11 A. Highest courts and tribunals
It is for the High Contracting Parties to designate the courts which they deem to be the ‘highest courts and tribunals’ of their State.52 This feature of domestic classification, combined with
the use of the phrase ‘highest’, as opposed to ‘the highest’, reflects the need for flexibility as the Convention system is made up of 47 differing national judicial systems.53 This national
designation of the relevant courts by the High Contracting Parties contrasts sharply with the autonomous definition of a ‘court or tribunal’ under EU law. Restricting the competence to the ‘highest’ judicial bodies in the High Contracting Parties aligns with the principle of exhaustion of remedies, a core principle under the Convention laid down in Article 35 ECHR, and intends to prevent a ‘proliferation of cases’.54
A distinction can be drawn here between the Convention system and EU law. Under EU law, the obligation to refer a question for preliminary ruling depends on the context of the case, and whether the court will be classified under EU law as a court against whose decision there is no judicial remedy at national law. However, under Protocol No. 16, the ‘highest’ courts are designated ex ante a referral to the Strasbourg Court. 55 This ex ante designation ‘strikes an
adequate balance’ between increasing the dialogue between national judiciaries and the court in Strasbourg, and ‘safeguarding the ECtHR’s sparse resources from an overflow of requests’.56
In the EU, it was the willingness of lower national courts (i.e. courts other than the supreme courts or the courts of last instance) to engage with the preliminary reference procedure which led to its success. These lower courts used the procedure under Article 267 TFEU to increase their own importance domestically. This procedure not only increased the importance of subordinate national courts vis-à-vis other national courts, but also as against other organs of the Member States. As a result of their ability to review legislation, national courts thus increased their powers vis-à-vis the other branches of government.57 By incorporating
judgments of the ECJ into domestic rulings, the subordinate national courts could deliver judgments which have to be accepted by higher, and the highest, domestic courts.58 As a result,
within national legal orders, lower national courts are more likely than superior courts to gain
52 Article 1(1) Protocol No. 16 ECHR. See also, Article 10 Protocol No. 16 ECHR. 53 O’Leary and Eicke (n 41), 224.
54 Voland and Schiebel (n 45), 81. 55 Ibid, 82.
56 Ibid.
57 Karin Leijon, ‘National courts and preliminary references: supporting legal integration, protecting national
autonomy or balancing conflicting demands?’ (2020) West European Politics 1, 3.
12 new powers from sending questions for preliminary ruling to the ECJ.59 As a result, these
national courts were more willing to comply with their duties under the principle of sincere cooperation, as set out in Article 4(3) TEU. Higher and supreme national courts were less willing to engage with the preliminary reference procedure as they perceived it as undermining their position within the domestic sphere. Given that lower courts are excluded from engaging with the procedure before the ECtHR, it remains to be seen if a similar dynamic will develop in the context of Protocol No. 16.60
Like the EU’s preliminary reference procedure, the national courts concerned can only ask for an advisory opinion within the context of the case pending before it, as the procedure is not intended to be a form of abstract judicial review.61 Had the Strasbourg Court accepted the
review of abstract or hypothetical questions, its judicial resources would be further strained than they currently are.62 While hypothetical questions could reduce the future workload of
the ECtHR, particularly if the case is an ‘appropriate test case’, the ‘general position’ is that hypothetical questions ‘will be answered only exceptionally’.63 However, while Protocol No.
16 limits national courts to asking questions within the context of the case pending before it, that same Protocol does not limit the ECtHR in that way.64 The aim of this mechanism is to
allow the Strasbourg Court to provide guidance to the national courts of the High Contracting Parties on the interpretation of the Convention; having the ability to go beyond the parameters of the case which forms the basis of the advisory opinion would allow it to establish general principles. The ECtHR declined to do so, however, in its first advisory opinion.65 Certain
commentators argue that by the ECtHR limiting itself in this way, it is ‘doubtful’ whether the mechanism in Protocol No. 16 will ever develop into a ‘meaningful tool of judicial dialogue’.66
It was through the development of doctrines and principles by the ECJ in response to questions for preliminary ruling from national courts that allowed EU law to become so prevalent and omnipresent in domestic legal orders.
59 Ibid.
60 Gerards (n 5), 642.
61 Lemmens (n 40), 697. See Article 1(2) of Protocol No. 16 ECHR. 62 Gragl (n 37), 238.
63 R.J. Moules, Environmental Judicial Review (Bloomsbury 2011), 154.
64 Laurens Lavrysen, ‘The mountain gave birth to a mouse: the first Advisory Opinion under Protocol No. 16’ 24
April 2019, https://strasbourgobservers.com/2019/04/24/the-mountain-gave-birth-to-a-mouse-the-first-advisory-opinion-under-protocol-no-16/, accessed 12 May 2020.
65 Request no. P16-2018-001 (n 1), para. 26: “the opinions [the ECtHR] delivers under this Protocol must be
confined to points that are directly connected to the proceedings pending at domestic level”.
13 The procedure under Protocol No. 16 is voluntary and optional at every stage, whereas the preliminary reference procedure transforms from a discretionary mechanism that national courts can use to a duty when a question of interpretation or validity of EU law arises before the court of last instance.67 The Protocol No. 16 procedure is a completely voluntary procedure:
designated national courts are not required to seek an advisory opinion from the ECtHR, the ECtHR is ‘not compelled to respond if an advisory opinion is sought’, and, if the ECtHR decides to render an advisory opinion, they are not binding on the national courts.68
Given the voluntary nature of the procedure, it will be important for the ECtHR to follow a clear and consistent practice in terms of the admissibility of advisory opinions, to ensure that national courts engage with the process in a meaningful way.69 Under Article 267 TFEU, there
are no procedural admissibility requirements beyond the fact that the court must qualify under the autonomous definition of a ‘court or tribunal’.70 Article 1(1) of Protocol No. 16 states that
the designated domestic courts ‘may request the Court to give advisory opinions on questions relating to the interpretation or application of the rights and freedoms defined in the Convention or the protocols thereto’. In contrast, under Article 267 TFEU, the ECJ has the competence to decide on any and all questions relating to the interpretation or validity of EU law.71 To ensure
that national courts are incentivised to engage with this new cooperative procedure, Voland and Schiebel contend that the Strasbourg Court should ‘act cautiously’, and should only refuse requests from national courts when such refusal is well justified, such as in a repetitive case. 72
B. Non-binding nature of the opinion
The non-binding nature of the advisory opinions reflects the intention that this procedure is to consist of a dialogue between the national courts and the ECtHR.73 It also highlights that the
drafters of the Protocol considered that there would be ‘little risk’ that a national court which decided, of its own accord, to ask the ECtHR for an advisory opinion would not follow the advice of the Strasbourg Court.74 This demonstrates the level of trust that the ECtHR has in
67 Article 267(3) TFEU.
68 Voland and Schiebel (n 45), 82.
69 Konstantin Korkelia, ‘Advisory jurisdiction of the European Court of Human Rights under Protocol No. 16:
prospects and challenges’ (2019) European Human Rights Law Review 291, 293.
70 Bonnelli (n 10), 366.
71 Voland and Schiebel, (n 45), 84. 72 Ibid, 83.
73 Korkelia (n 69), 296. 74 Gragl (n 37), 243.
14 the national courts; this could be considered as an implicit embodiment of the principle of sincere cooperation.75
While the advisory opinion is non-binding, it is hard to see how the referring national court could not be bound by the interpretation given by the ECtHR.76 Given the ECtHR’s extensive
experience and authority in the field of human rights protection, it is unlikely that a national court which requests an advisory opinion from the ECtHR would not take the Strasbourg Court’s interpretation into consideration.77 The adoption of the ECtHR’s point of view on the
interpretation and application of the Convention flows from the monopoly the ECtHR has over the interpretation of the rights and freedoms in the ECHR.78
Given that the opinion is of a non-binding nature, it has been disputed how useful the advisory opinion mechanism will be ultimately.79 As domestic courts are not bound by the advisory
opinion, there is the possibility that the same case can be subject to proceedings before the ECtHR ‘if the concerned party introduced an individual complaint’.80 Thus, whether the
advisory opinion mechanism is effective depends largely on ‘the domestic follow-up to the opinion’.81 As it would still be possible to submit an individual complaint following the
exhaustion of domestic remedies, the non-binding nature of the advisory opinions, at first glance, appears to be at odds with its objective of reducing the workload of the ECtHR.
C. Reducing the Court’s workload
One of the objectives of Protocol No. 16 is to reduce the workload of the ECtHR. It is hoped that a correct application of the Convention at a domestic level would reduce the amount of individual complaints being brought before the Court in Strasbourg. The advisory opinion mechanism is designed to shift ‘from ex post to ex ante’ the resolution of issues of interpretation of the ECHR to the domestic sphere.82 Despite this objective, a number of concerns have been
raised as to whether this procedure is truly the best mechanism to achieve this objective.
75 O’Leary and Eicke, (n 41), 226. 76 Lemmens (n 40), 702.
77 Korkelia (n 69), 296.
78 Ada Paprocka and Michal Ziolkowski, ‘Advisory opinions Under Protocol No. 16 of the European
Convention on Human Rights’ (2015) 11 European Constitutional Law Review 274, 291.
79 Voland and Schiebel (n 45), 83. 80 Ibid.
81 Ibid. 82 Ibid, 79.
15 Some authors criticise this procedure, claiming that by creating a new competence, the ECtHR’s workload will be increased, rather than reduced.83 Gerards considers that this goal,
the reduction of workload, is ‘an illusory one’.84 Most of the cases which currently come before
the ECtHR stem from ‘structural defects’ in the domestic legal systems of the High Contracting Parties, such as ‘the excessive length of national proceedings’ rather than a ‘lack of clarity about Convention standards’.85 As such, the complaints stemming from the national structural
defects will not be reduced by the Protocol No. 16 procedure.
Voland and Schiebel contest whether advisory opinions are the most optimal method to realise the objective of reducing the workload of the ECtHR.86 It is likely that the advisory mechanism
will, at least in the beginning, ‘aggravate the backlog of cases’.87 Voland and Schiebel argue
that the capacity of the ECtHR to rule in cases before it is likely to be burdened, at least initially, by the procedure in Protocol No. 16 because such requests will probably receive priority over contentious matters before the court in Strasbourg since the proceedings before the national court are paused until the advisory opinion is received from the ECtHR.88 Therefore, it would
be essential for the domestic courts of the High Contracting Parties and the ECtHR to work together and to cooperate to ensure that this procedure does not cause undue delays for the national proceedings.
The advisory opinion mechanism in Protocol No. 16 clearly takes some inspiration from the preliminary reference procedure, but has been tailored to fit the Convention system. The potential for conflict between the duties of the national courts under Article 267 TFEU and the exercise of the advisory opinion mechanism will thus be examined in light of the principle of sincere cooperation.
4. Sincere cooperation:
Loyalty has been present in the EU Treaties since the European Coal and Steel Community, and has been central to the European legal integration project.89 Since the Treaty of Lisbon, it
83 See, for example, Giovanni Zampetti, ‘The recent challenges for the European system of fundamental rights:
Protocol No. 16 to the ECHR and its role facing constitutional and EU level of protection’ Discussion Paper No. 2/18, Europa-Kolleg Hamburg, Institute for European Integration, Hamburg, 27.
84 Gerards (n 5), 648. 85 Ibid.
86 Voland and Schiebel (n 45), 85. 87 Ibid.
88 Ibid.
89 Peter van Elsuewege, ‘The Duty of Sincere Cooperation and Its Implications for Autonomous Member State
Action in the Field of External Relations: Member State Interests and European Union Law’ in M. Varju (ed.)
16 has acquired a ‘central position’ in the Treaty on European Union, making it an essential constitutional principle.90 This duty is now set out in Article 4(3) TEU (ex Article 10 EC).
Member States are under an obligation to ensure that EU law is applied and implemented within the national legal order and must take care to fulfil their obligations arising out of the Treaties and EU legal instruments.91 While ex Article 10 EC was not explicit that the duty of sincere
cooperation was binding upon both the EU institutions and the Member States, its successor in Article 4(3) TEU makes this clear.92 Both the EU and the Member States are to assist each
other, ‘in full mutual respect’ to fulfil their duties and obligations under EU law.93 This is a
positive obligation on the Member States and the EU. There is also a negative obligation; Member States must ‘abstain from any measure which could jeopardise the attainment of the objectives’ of the Treaties. Article 4(3) TEU lays down general abstract duties for the Member States, ‘the actual tenor of which depends on each individual case’.94
Sincere cooperation prevents conflicts between EU law measures and national law measures.95
Where the Court of Justice has held that individuals can rely on EU law before the national courts, all organs of the State are required to comply with the duty of sincere cooperation in that regard.96 The principle of sincere cooperation expresses ‘community solidarity’ and
reflects the international law principle of good faith, created to ‘secure mutual respect of the powers of the legislative, executive and judicial bodies of different levels of authority’.97 The
EU conception of sincere cooperation can be regarded as the international law principle of good faith applied to a ‘specific treaty system’.98 The consequences of the duty of sincere
cooperation within the EU are more far-reaching than the consequences of the principle of good
90 Ibid.
91 Lacchi (n 25), 682.
92 Van Elsuewege (n 89), 285. This reciprocity is between the EU and its Member States is supported by Article
13 TEU. The case law of the CJEU has also confirmed that this duty extends to inter-institutional relations: Case C-73/14, Council v. Commission [2015] ECLI:EU:C:2015:663.
93 Article 4(3) TEU.
94 Case C-78/70 Deutsche Grammophon Gesellschaft mbH v. Metro-SB-Großmärkte GmbH & Co. KG. [1971]
ECR I-00487, para. 5.
95 This is a result of the doctrine of primacy in EU law, as established by the Costa/ENEL case law. It also
operates through the doctrines of direct effect, as established by Van Gend en Loos and indirect effect, as established by Von Colson. The Simmenthal mandate also requires national courts to set aside provisions of national law when they conflict with applicable EU law.
96 Case C-103/88, Fratelli Costanzo SpA v. Commune di Milano [1989] ECR I-01839, para. 31.
97 Yves Jorens (ed.), Carlos Garica de Cortázar, Martin Meissnitzer, Simon Roberts and Bernhard Spiegel,
‘Analytical Report 2017 on mutual assistance and sincere cooperation: An inquiry into the cooperation to enforce the coordination Regulations and to combat fraud and error’,
https://ec.europa.eu/social/BlobServlet?docId=19403&langId=en, accessed 16 May 2020, 27.
98 Geert de Baere and Timothy Roes, ‘EU Loyalty as Good Faith’ (2015) 64 International Comparative Law Quarterly 829, 838.
17 faith in international law; these consequences are proportionate to both the complexity and the degree of integration within the EU.99
This section will focus primarily on the duty of sincere cooperation owed by the Member States to the EU, and sincere cooperation in the field of fundamental rights protection.
A. The duty of sincere cooperation owed by the Member States to the EU
The ‘main thrust’ of the principle of sincere cooperation in Article 4(3) TEU is obligations imposed on the Member States.100 The duty imposed on Member States requires them ‘to
facilitate the achievement of the Union’s tasks and to abstain from any measure which could jeopardise the attainment of the Treaty’s objectives’.101 Sincere cooperation as a principle
demands a number of things from the various organs of the Member States: the proper implementation of EU law; consistent interpretation of national law with EU law; primacy of EU law over national law; and, the use of preliminary references. This section will focus on the proper application of EU law and the doctrine of consistent interpretation.
In Von Colson, the Court of Justice established the doctrine of consistent interpretation, or indirect effect.102 Indirect effect requires national courts to interpret national law consistently
with EU law provisions.103 Given that this doctrine is a duty imposed on national courts by the
principle of sincere cooperation, it is clear that this principle is thus an essential tenet of the decentralised enforcement of EU law in the Union; it requires Member States to ensure the proper implementation, application and enforcement of EU law. It is complemented by Article 19(1) TEU, which states that Member States ‘shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law’. Member States are, in theory, free to establish domestic procedural rules to ensure such protection. However, there are certain principles limiting this freedom. In Rewe, the ECJ held that ‘it is the national courts which are entrusted with ensuring the legal protection which citizens derive from the direct effect of the provisions of [Union] law’.104 While national authorities have the autonomy to
designate the competent courts to deal with such disputes and to lay down the relevant
99 Ibid.
100 Marcus Klamert, The Principle of Loyalty in EU Law (Oxford University Press 2014), 23. 101 Craig and de Búrca (n 4), 354.
102 Case C-14/83 Sabine von Colson and Elisabeth Kamann v. Land Nordrhein-Westfalen [1984]
ECLI:EU:C:1984:153.
103 EurWORK, ‘Direct effect’, 15 February 2017,
https://www.eurofound.europa.eu/observatories/eurwork/industrial-relations-dictionary/direct-effect, accessed 12 May 2020.
104 Case C-33/76, Rewe-Zentralfinanz eG and Rewe-Zentral AG v. Landwirtschaftskammer für das Saarland
18 procedural conditions, this procedural autonomy is limited by the principle of equivalence and the principle of effectiveness.105 The principle of equivalence ‘prohibits a Member State from
laying down less favourable procedural rules for actions for safeguarding rights that individuals derive from EU law than those applicable to similar domestic actions’.106 The principle of
effectiveness requires that national procedural rules do ‘not render impossible in practice or excessively difficult the exercise of rights conferred by EU law’.107 Along with the principle
of equivalence and the principle of effectiveness, the principle of sincere cooperation ‘also functions as a limit on procedural autonomy’ in the Member States.108 Sincere cooperation
acts a limit on the national procedural autonomy of the Member States because these domestic courts are required to take ‘any appropriate measure within their competence’ to ensure that EU law is respected and observed.109
Considering that substantial duties flow from this rather abstract principle of sincere cooperation, a balancing act will be required by national courts to ensure that they comply with these duties while also engaging with the mechanism in Protocol No. 16. The following section will examine the conflicts that may occur, both procedurally and substantively, when the jurisdiction of these two procedures overlap.
5. Conflict zone: a procedural and a substantive vector:
As has been demonstrated, there will be instances where courts fall within the EU law definition of a ‘court or tribunal’, competent of referring questions for preliminary ruling, while also being designated by the national authorities of that Member State as competent to ask the ECtHR for advisory opinions under Protocol No. 16. This section intends to examine the potential procedural conflicts which may occur, as well as the substantive conflicts. A number of scenarios will be considered in the substantive conflict section: firstly, where the ECtHR has ruled on the substantive content of a right receiving analogous protection under the Charter, and a question for preliminary ruling is posed to the ECJ. The second scenario considers where the ECJ has interpreted a right which protection under both the Charter and the ECHR, and an advisory opinion is asked of the ECtHR. Thirdly, where neither European court has ruled on
105 Ibid.
106 Case C-234/17, XC and Others v. Generalprokuratur [2018] ECLI:EU:C:2018:853, para. 25. 107 Ibid, para. 22.
108 Anna Wallerman, ‘Towards an EU Law Doctrine on the Exercise of Discretion in National Courts? The
Member States’ Self-Imposed Limits on National Procedural Autonomy’ (2016) 53 Common Market Law
Review 339, 342. 109 Ibid, 343.
19 the content of a right protected under the ECHR and the Charter, the order in which references must be made will be examined in light of the principle of sincere cooperation.
A. Procedural conflict
The CJEU has, compared to the ECtHR, little experience adjudicating on fundamental rights issues.110 The Court in Luxembourg evolved from a body primarily focused on economic
issues to a court with a vast jurisdiction, which now includes the protection of fundamental rights, notably since the elevation of the Charter of Fundamental Rights of the EU to primary law status with the Treaty of Lisbon, in 2009.111 By contrast, the European Court of Human
Rights was established in 1959, and was established to provide ‘an early warning system against the decline of democratic standards and the growth of dictatorships’.112 The current
permanent body was established in 1998 by Protocol No. 11 to the ECHR, and was a coming together of the former European Court of Human Rights and the now obsolete European Commission of Human Rights.113
All Member States of the EU are also High Contracting Parties to the ECHR. As such, there can be some jurisdictional overlap for the domestic courts of these States. The procedural conflict in the context of this paper can occur when national courts are both designated by the national authorities as a body competent of referring questions to the ECtHR under Protocol No. 16, and are not under an obligation to refer a question for preliminary ruling to the ECJ under Article 267(3) TFEU. As demonstrated, given the different ways in which courts are designated as competent under the two systems, there is scope for domestic courts to fall within both categories. National courts of last instance which are ordinarily required to refer questions for preliminary ruling under Article 267(3) TFEU, but are exempt from doing so due to the CILFIT exceptions, would also fall within this category.
The CILFIT case established both the ‘acte éclairé’ doctrine and the ‘acte clair’ doctrine in EU law.114 Under the ‘acte éclairé’ doctrine, a national court of last instance is not required to refer
a question to the ECJ for preliminary ruling if the ECJ has already ruled on this point of law.115
The ‘acte clair’ doctrine exempts national courts of last instance from referring questions for
110 Gráinne de Búrca, ‘After the EU Charter of Fundamental Rights: The Court of Justice as a Human Rights
Adjudicator’ (2013) 20 Maastricht Journal of European and Comparative Law 168, 170.
111 Ibid, 171.
112 David Harris, Michael O’Boyle, Ed Bates, Carla Buckley (eds.), Harris, O’Boyle and Warbrick: Law of the European Convention on Human Rights (4th edn, Oxford University Press 2018), 107.
113 Ibid.
114 CILFIT (n 9).
20 preliminary rulings whereby it’s ‘so obvious’ how the ECJ and all the other national courts would rule that there is ‘no scope for any reasonable doubt’ as to how the law would be interpreted.116 In order for the ECJ to remain a relevant interpreter of rights protected under
the Charter, which also find analogous protection under the ECHR, it would be imperative for the ‘acte éclairé’ doctrine and the ‘acte clair’ doctrine not to apply to the advisory opinions under Protocol No. 16. National courts could use these doctrines to argue that no reference is necessary under Article 267 TFEU after obtaining an advisory opinion from the ECtHR, as the interpretation of an ‘identical fundamental right had been determined by the ECtHR’ in accordance with Articles 52(3) and 53 Charter.117 The refusal to extend these doctrines to the
advisory opinions handed down by the ECtHR under Protocol No. 16 is justified in light of their voluntary, non-binding nature. The application of this doctrine to the advisory opinions could deprive the ECJ of having the last word on the EU law issue at hand.118
One of the objectives of Protocol No. 16 is to transform the relationship between the Court in Strasbourg and the domestic courts of the High Contracting Parties from a hierarchical one to one of cooperation and dialogue. Lemmens considers that the improved dialogue that the Protocol could foster between national courts and the ECtHR could come at the expense of the ‘harmonious relationship’ between the CJEU and the ECtHR.119 Should a national court make
a simultaneous referral to both the ECJ and the ECtHR, neither court will know how the other will rule, and it could undermine the ‘legal diplomacy’ that underpins their relationship.120
The procedural conflict will largely remain the same across the various substantive conflicts detailed below.
B. Substantive conflict
The ECHR was adopted in 1950 and entered into force in 1953.121 It made binding a number
of rights found in the Universal Declaration of Human Rights. The ECHR had two key aims: firstly, it was designed to prevent the sort of widespread human rights violations seen during
116 CILFIT (n 9), para. 16.
117 Voland and Schiebel (n 45), 93. 118 Ibid, 89.
119 Lemmens (n 40), 713. 120 Ibid.
121 European Convention on Human Rights, https://www.echr.coe.int/Pages/home.aspx?p=basictexts, accessed
21 the Second World War from reoccurring, and secondly, it was created to protect Western Europe from ‘communist subversion’.122
The ECHR is a leading instrument for human rights protection in international law, and provides ‘effective enforcement mechanisms through proceedings before a court’.123 The
ECHR became a success across Europe mainly through the individual application procedure, whereby all citizens can ‘seek legal protection’ before the ECtHR from violations of the Convention by a High Contracting Party to the ECHR.124 The judgments rendered by the
ECtHR have a ‘far-reaching significance’, with the domestic effect of these judgments depending on the national law of the respective High Contracting Party.125
Given the EU’s foundations as an economic community, fundamental rights did not feature in the original Treaty. Unlike the court in Strasbourg, the European Court of Justice ‘is not a specialised court’.126 Fundamental rights in the EU developed as a result of dialogue between
the national courts of the Member States and the Court of Justice, and became general principles of EU law.127 As a result, the EU has developed ‘an impressive array’ of
fundamental rights provisions.128
In the EU, the ECHR has long been a ‘special source of inspiration’ for fundamental rights protection standards. Prior to the Charter of Fundamental Rights becoming binding in the EU, the ECHR and national constitutions were the main sources of inspiration for fundamental rights protection in the EU.129 The Charter became binding on the EU institutions and the
Member States (when they act within the scope of EU law) in 2009.130 The main purpose of
the Charter was to ‘make more visible’ fundamental rights protection in EU law. 131
122 Stephen Brittain, ‘The Relationship between the EU Charter of Fundamental Rights and the European
Convention on Human Rights: an Originalist Analysis’ (2015) 11 European Constitutional Law Review 482, 482.
123 Andreas Voßkuhle, ‘Multilevel Cooperation of the European Constitutional Courts: Der Europäische
Verfassungsgerichtsverbund’ (2010) 6 European Constitutional Law Review 175, 180.
124 Ibid. 125 Ibid, 181. 126 Ibid.
127 See Case C-29/69, Erich Stauder v. City of Ulm-Sozialamnt [1969] ECLI:EU:C:1969:57; Case C-11/70, Internationale Handelsgesellschaft mbH v. Einfuhr-und Vorratsstelle für Getreide und Futtermittel [1970]
ECLI:EU:C:1970:114; Case C-4/73, J. Nold, Kohlen- und Baustoffgroßhandlung v. Commission of the
European Communities [1974] ECLI:EU:C:1974:51. 128 Craig and de Búrca (n 4), 382.
129 Article F(2) TEU (Maastricht Treaty).
130 Article 51 Charter of Fundamental Rights of the European Union. 131 Brittain, (n 122), 482.
22 Article 52(3) of the Charter states that where rights are protected by both it and the ECHR, ‘the meaning and scope of those shall be the same as those laid down by the said Convention’.132
However, this provision also states that the Union can provide ‘more extensive protection’.133
By this provision, the ECHR becomes the ‘floor’ for fundamental rights protection in the EU, below which the Member States cannot go. At the same time, it allows the EU the flexibility to go further than the standard of protection provided for by the ECHR. The Strasbourg Court also established a doctrine to accommodate the autonomy of the EU legal order in its Bosphorus case law.134
The ECtHR set out its ‘equivalent protection’ doctrine in Bosphorus. It was through this doctrine that any tension between EU law and Convention law was mitigated by the ECtHR.135
This doctrine allows the ECtHR to accommodate the autonomy of the EU legal order.136 The
ECHR permits High Contracting Parties to transfer sovereign powers to international organisations, such as the EU, but this transfer does not absolve the High Contracting Parties of their responsibility under the ECHR for ‘acts done as members’ of the EU.137 Nevertheless,
this ‘equivalent protection’ doctrine presumes that the High Contracting Party has not breached its obligations under the ECHR as a Member State of the EU once the EU provides fundamental rights protection that is of the same standard as that provided for in the Convention.138 This
protection does not have to be identical: in Bosphorus, the ECtHR held that it was sufficient once the standard of protection was ‘comparable’.139 This presumption of equivalent protection
is rebuttable, and can be rebutted when the Strasbourg Court considers that the protection of Convention rights within the EU (or other international or supranational organisations) is ‘manifestly deficient’.140 Guarantees of the protection of equivalent fundamental human rights
standards across Europe is reflected in repeated references to ECHR case law by the ECJ.
132 Article 52(3) Charter of Fundamental Rights of the European Union. 133 Ibid.
134 Bosphorus Hava Yolları Turizem ve Ticaret Anonim Şirketi (Bosphorus Airways) v. Ireland 2005-VI; 42
EHRR 1.
135 Lemmens (n 40), 707.
136 Cathyrn Costello, ‘The Bosphrous Ruling of the European Court of Human Rights: Fundamental Rights and
Blurred Boundaries in Europe’ (2006) 6(1) Human Rights Law Review 87, 91.
137 Harris (n 112), 35. 138 Ibid.
139 Bosphrous (n 134), para. 155. 140 Ibid, para. 156
23 The following sub-sections will examine the various situations in which conflict can arise between the preliminary reference procedure, the advisory opinion mechanism, and the duties flowing from the principle of sincere cooperation.
I. Substantive conflict: the ECJ’s approach:
The Court of Justice is to ‘ensure that in the interpretation and application of the Treaties the law is observed’.141 Article 52(3) of the Charter states:
“In so far as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection.”
If the ECtHR has pronounced on the content of an analogous right, the ECJ is likely to take that interpretation into account. This is due to the fact that the ECHR has long been regarded as a special source of inspiration with regard to fundamental rights protection in the EU. This interpretation will form the basis of protection within the EU, but the EU can go beyond the level of protection set out in the ECHR. Where the scope of the dispute primarily concerns EU law, the national courts ought to cooperate with the ECJ, and refer questions to it for preliminary ruling. AG Kokkot argues that, in light of the principle of primacy in EU law, national courts of the EU Member States should give precedence to the preliminary reference procedure over the advisory opinion procedure of the ECHR.142
There may be some situations whereby the Charter offers a greater level of protection than the interpretation given to the same right in the ECHR by the ECtHR. The ECJ has shown itself to be reluctant to confine its interpretation of the Charter to be in line with the ECtHR jurisprudence.143 If the Charter offers a greater level of protection, then the ECJ will use the
interpretation given to the Convention rights and freedoms as the ‘floor’ and can build upon it to provide more extensive protection.
As the ECJ will be pronouncing on an issue of EU law, national courts will be required to comply with this judgment and to engage fully with their duties under the principle of sincere cooperation, including the full and proper implementation and application of EU law. As the
141 Article 19(1) TEU.
142 Fisnik and Doli (n 47), 279.
143 Case C-69/10 Brahim Samba Diouf v. Ministre du Travail, de l’Emploi et de l’Immigration [2011] ECR
24 ECtHR will have already interpreted this right as guaranteed under the ECHR, a national court would only request an advisory opinion from the ECtHR if it considers that the question ‘raises a novel point of Convention law, or that the facts of the case do not seem to lend themselves to a straightforward application of the Court’s case-law, or that there appears to be an inconsistency in the case-law’.144
The following section considers the approach national courts should take when the ECJ has interpreted a right protected under the Charter, but the same right has yet to be interpreted by the ECtHR.
II. Substantive conflict: the ECtHR’s approach:
The ECtHR jurisdiction is limited to ‘the interpretation and application of the Convention and the Protocols thereto’.145 It has no competence to interpret EU law, or pronounce on the validity
of EU law instruments.
If the ECJ has interpreted the right which has analogous protection under both the Charter and the ECHR, and the ECtHR deems the right to have equivalent protection under the Charter, it could declare the advisory opinion inadmissible. This would depend on the ECtHR extending its Bosphorus presumption to requests for advisory opinions.
If the ECJ has interpreted the right which has analogous protection under both the Charter and the ECHR, and the ECtHR considers it not to have equivalent protection under the Charter, it could declare the complaint admissible and interpret the relevant human right in line with its previous case law. Yet, should the ECtHR provide divergent interpretation to the one already given to the Charter right by the ECJ, the national court will most likely still be bound by the ECJ’s interpretation due to the doctrine of primacy, in compliance with the principle of sincere cooperation.146 As such, if the national court also considers there to be a lack of equivalent
protection of the relevant right within the EU, it could then refer a preliminary ruling to the ECJ, as required under the principle of sincere cooperation. However, whether the ECJ takes the advisory opinion into account depends on its status: the ECJ considers the interpretation of the ECtHR to be the ‘floor’ in terms of fundamental rights protection when the Strasbourg Court interprets Convention rights and freedoms in its case law. However, due to the special nature of advisory opinions, particularly the fact that the procedure is voluntary and
144 Guidelines on application of Protocol No. 16,
https://www.echr.coe.int/Documents/Guidelines_P16_ENG.pdf, accessed 12 June 2020.
145 Article 32(1) ECHR.
