Digital Theses Archive


Tesi etd-04042018-145416

Type of thesis
The evolution of the ECHR impact on the CJEU jurisprudence (the example of ‘due process’ rights)
Scientific disciplinary sector
SCIENZE GIURIDICHE - Individual Person and Legal Protections
Presidente Prof. ARCARI, MAURIZIO
Membro Dott.ssa VIVALDI, ELENA
Relatore Prof. CARROZZA, PAOLO
  • access to justice
  • Charter of Fundamental Rights of the EU
  • ECHR
  • EU legal order autonomy
  • EU ‘due process’ rights
Exam session start date
This doctoral Thesis explores the evolution of the European Convention on Human Rights (ECHR) impact on the case-law of the Court of Justice of the European Union (CJEU). Although there is a significant literature on many aspects of this question, thus far one of the most relevant ones, namely how the Treaty of Lisbon entry into legal force influenced the way the ECHR provisions are applied and/or interpreted by the CJEU, has received less attention. In order to analyse this question, the author proposes to use a group of the so-called ‘due process’ captured by Arts. 6 (‘right to a fair trial’), 7 (‘no punishment without law’), 13 (‘right to an effective remedy’) and Art. 4 of Protocol No. 7 to the European Convention (‘right not to be tried or punished twice’) for a case study as they could arguably serve as an illustrative example representing the CJEU&#39;s changing attitude towards the ECHR. <br>On the one hand, the CJEU was rather active in transposing the ready solutions proposed by the Strasbourg case-law on the ECHR ‘due process’ rights - which might be seen as a manifestation of a more general trend for coherent application of the ECHR provisions within the European Union and the Council of Europe legal orders. On the other hand, it was traditionally recognised that the accomplishment of the EU internal market could only be achieved when adequate legal protection of the rights stemming from European Law. Hence, the abovementioned ECHR ‘due process’ rights were often applied and/or interpreted in conjunction with such general principles of European Law as primacy, direct effect, and state liability, and one could indicate the higher degree of specificity achieved by the EU Human Rights standards in this area.<br>The claim of this Thesis is that the Treaty of Lisbon - with its two complementary achievements of a legally binding character of the Charter of Fundamental Rights of the European Union (and in particular Arts. 47-50 CFREU) and a commitment by the EU to accede to the European Convention – had an immediate impact on the CJEU’s perception of the ECHR ‘due process’ rights. It could be argued that the early CJEU’s case-law demonstrated an aspiration to rely frequently on the ECHR norms in order to frame the basic legal constructs crucial for the EU legal order formation (a phenomenon often referred to as the EU’s ‘constitutionalisation’). <br>However, after the Treaty of Lisbon entry into force the CJEU seems to develop the body of case-law with the ‘CFREU-based’ substance, which resulted in a significant decrease in number of the CJEU’s references to the ECHR ‘due process’ provisions. This strategy may be explained by the Luxembourg Court’s growing awareness of the EU legal order’s (external) autonomy, which is generally defined as upholding the primacy, unity and effectiveness of EU Law, the autonomy and effectiveness of the preliminary ruling procedure, the separation of competences between the EU and its Member States established by the EU Treaties, as well as the inviolability of the CJEU’s jurisdiction (Opinion 2/13).<br>The author argues that, despite the decreasing impact of the Convention provisions on the CJEU’s legal reasoning, the jurisprudence of two European Courts in this field (for now, at least) could be characterized as non-contradictory. However, since the borders of the European Law are practically undeterminable nowadays due to the EU Charter’s broadest scope of application - and Arts. 47-50 CFREU almost fully correspond to the abovementioned ECHR provisions - different rationales of Council of Europe and European Union functioning may be a reason for the potential legal conflicts in the future. Therefore, the post-Lisbon CJEU case-law on the ‘due process’ rights clearly has a potential to (as a minimum) undermine legal certainty in this field or even to (as a maximum) weaken the overall protection offered by the Convention supervisory mechanism within the EU Member States’ domestic legal systems in view of the (erga omnes) legal force of the CJEU’s final judgments. <br>