Abstract
The book examined intensely the core implications resulting from the competition or cooperation between the Strasbourg and Luxembourg courts in light of the EU accession to ECHR. Answering to the big and subsidiary research questions, it is generally concluded that the EU accession to ECHR will affect significantly the current dialogue between the two systems of law and their model of coexistence. It is therefore generally concluded that the EU accession to ECHR will prove important not only for symbolic reasons, but also for legal and practical reasons that affect and determine the human right position of persons in the EU and its Member States. The in-depth examination of the effects that this process will bring proves the implicative legal relationships that exist between competing international courts’ jurisdictions in general, and EU and Convention autonomous approaches to their laws.
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Notes
- 1.
Helfer and Slaughter (2005), p. 8.
- 2.
de Witte (2014), p. 351/2.
- 3.
Jacobs (2007).
- 4.
One may legitimately question whether there is any practical case that would demonstrate that there are divergencies in the scope of protection between the ECHR standards and EU law fundamental rights standards (or merely accession is being undertaken for symbolic reasons). The author would like to bring two examples: first, the right to vote and the prohibition of discrimination. The right to vote under EU law is projected to guarantee one’s articulation of will only with regard to the European Parliament. Considering the Sejdic & Finci case of the Strasbourg Court, the EU may likely fall within the border of violation of Art. 3 Protocol 1 to the ECHR (in conjunction with the prohibition of discrimination). Under the latter case standards, the right to vote should be guaranteed in face of the EU legislature, which also includes the Commission and the Council. The right to vote under the EU law seems not only limited but also supporting certain member state-related affiliations, which, in light of the Sejdic case, may seem as violating the Convention (on this, see: Korenica and Doli 2015). Second, one may take the example of the compliance with ECHR standards of competition fines which the Commission applies on enterprises. Such fines, which in light of the Convention standards fall under Art. 6, should in principle have to be imposed by an independent court. This fact alone may bring claimants under the competition law procedures in the EU outside the guarantees of the latter ECHR provision. ‘The uncertainty alluded to above as to whether EC competition law proceedings could be considered as involving a “criminal charge” within the meaning of Article 6 ECHR has stemmed from the fact that the EC law’s domestic classification of sanctions imposed by the Commission for breaches of Articles 101 and 102 TFEU is explicitly non-criminal. The wording of Article 23(5) of Regulation 1/2003 sets out that the decision by which the Commission imposes a fine on undertakings “shall not be of a criminal nature”. However, according to the case-law of the ECtHR, such classifications under domestic law as to the criminal nature of the offence have only a “relative value”’ (Talbot 2014). With the EU accession to ECHR, these two substantive human rights’ issues may start gradually improving. The same may be said with regard to the right to access the court and effective remedy under EU law.
- 5.
Barber (1993), p. 137.
- 6.
Callewaert (2014), p. 15.
- 7.
Callewaert (2014), p. 11.
- 8.
Han (2006), p. 108.
- 9.
Quoted from: Barbera (2012), p. 9.
- 10.
Lavranos (2009), p. 2.
- 11.
Buergenthal (2001), p. 274.
- 12.
Alford (2000), p. 164.
- 13.
Contra: Gragl comes to the conclusion that the Luxembourg Court will become a ‘quasi-constitutional or supreme court’, whereas the Strasbourg Court will merely have the final say on fundamental rights in Europe. See: Gragl (2013), p. 278. My argument presented above goes beyond Gragl, proposing that both courts undertake a more structured function with regard to their role in the increasing legal pluralism but also human rights law architecture in Europe as a whole.
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Korenica, F. (2015). An Overall Conclusion. In: The EU Accession to the ECHR. Springer, Cham. https://doi.org/10.1007/978-3-319-21759-8_12
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