Adjudicating Europe

It is common knowledge that the national courts are key actors when it comes to application and enforcement of EU law. The same holds true in the Strasbourg system which is founded on the principle of subsidiarity - an overarching principle recently reaffirmed during the Interlaken Conference in February 2010. To put it differently, it is primarily for the national authorities and the national courts to apply the European Convention on Human Rights.

The accession to ECHR will grant power to the European Court of Human Rights to directly review the compatibility of Union acts with the ECHR. This sytem of external control might conflict with the principle of autonomy of EU law and the established ECJ case law. In the seminal Case 314/85 Foto-frost case, the Court of Justice has established an exclusive competence for the Court of Justice to assess the validity of Union legislation. Therefore, the national courts (all of them) are under an obligation to make a preliminary reference to the ECJ in case of doubts as to the validity of secondary legislation. Yet the accession to ECHR could undermine the autonomy of EU law and the Foto-frost judgment since a national court requested to raise the question may adopt a final decision without having requested a preliminary ruling, meaning that no further intervention of the ECJ is needed and that the ECtHR can review the compatibility of EU legislation. This is highly problematic!

Two main options are possible. The first option – which establishes a specific system of control – was promoted inter alia by Judge Timmermans at the hearing of the AFCO Commission of the European Parliament on 18 March 2010. In this system, the Commission should be granted the possibility to request the ECJ to rule on the compatibility of an EU act with the fundamental rights once a claim is lodged by an individual before the ECtHR. This option though apparently quite effective may unfortunately lead to important delays for the citizens who brought a case before the ECtHR.

The second option does not require the launch of a specific mechanism and is based on the current system of exhaustion of domestic remedies (Article 35 ECHR). The applicant must have exhausted the judicial remedies of the State concerned including a reference for a preliminary ruling to the Court of Justice. As put by the Resolution of the European Parliament on 19 may 2010, “the latter procedure shall be regarded as having been complied with where following a request to that end by the applicant the national court does not consider it appropriate for a reference for a preliminary ruling to be made”. It is true that this system highlights once again the role of the national courts in the protection of rights in Europe. But is it realistic to view the fulfillment of this procedure as a necessary condition (a kind of new admissibility criterion in fact) for lodging an individual request before the ECtHR?

Cartesio