Application of the ECHR by the European Court of Justice:
Remedying deficiencies through judicial control and interaction
As far as the EU institutions are concerned the risk of potential violations of the Convention are exacerbated by the lack of (direct) ‘external’ control on the part theStrasbourg Court.
Under the former treaties the ECJ was called upon to review the legality of acts adopted within the first and third Pillars ensuring their compatibility with the rights guaranteed by the Convention through Art. 6 TEU. By contrast, it is well known that it lacked jurisdiction over all acts of the second Pillar, a situation that has only partially been remedied by the Lisbon Treaty by allowing natural and legal persons to challenge the legality of decisions providing for restrictive measures against them.91
The ECJ has been presented with many cases involving infringements of the ECHR by EU institutions. In Connolly, for instance, the ECJ claimed that the Commission had not infringed the freedom of expression of the applicant insofar as his dismissal complied with the requirements laid down in Art. 10 (2) ECHR.92 In Baustahlgewebe, instead, the ECJ found that the Court of First Instance had unreasonably protracted the proceedings thereby breaching the right to a fair trial. Consequently, it annulled part of the decision and lowered the amount of the fines it had imposed on the interested undertaking.93 And in the recent Kadi decision it annulled the relevant Council Regulation insofar as the applicant had been deprived of his right – protected under Art. 1 of Protocol 1 to the ECHR – to bring his case before the competent authorities.94
Despite the fact that the EU is not a Member of the ECHR, the two Courts prove to be increasingly aware of each other. Besides the formal and informal contacts between them, which have increased over the last decade (the courts have held regular bilateral meetings since 1998), one can observe a progressive interest in their respective jurisprudence, especially on the part of the ECJ.95
This interaction is undoubtedly an example of the broader phenomenon of courts’ world-wide using each other’s case law, but within the European context this has specific justifications. More precisely, despite the fact that the Convention and the EC/EU treaties pursue different objectives, both judicial bodies are required to protect human rights in a common effortto promote their respect. References to decisions emanating from the other Court – and this, once again, is particularly true for the ECJ96 - are believed to have a legitimating function.97 Still, given the lack of any formal connection between the EU and the ECHR judiciaries, this reciprocal awareness rests on autonomy and there is little discussion of the facts that originated the precedents of the counterpart, and limited motivation as to why they should be considered relevant for the solution of the case in question.98
Where the Court of Human Rights has cited Luxembourg case law it has tended to do so in a sterile way, without venturing into an in-depth analysis of the relevant jurisprudence.99 If, on the one hand, this makes it difficult to assess its attitude towards Luxembourg, 100 on the other, it reveals a fairly deferential approach to the ECJs’ decisions101 and, more in general, to the EU legal order. This can be seen, for example, in the Hornsby case, where finding a violation of Art. 6 ECHR the Court considered thatGreecehad also failed to respect EC law, as interpreted by the Court of Justice.102
Similarly, in Pafitis theStrasbourg Courtdeclared that in assessing the length of proceedings under the same provision, it would not take into account the time taken for theLuxembourg Courtto respond to a preliminary reference under Art. 234 EC as this would “adversely affect the system instituted by Article 177 of the EEC treaty (now Article 234) and work against the aim pursued in substance in that Article.”103 The autonomous and independent nature of the two systems has also been stressed by rejecting applications arguing the existence under the Convention of a right to obtain a preliminary ruling by the ECJ before filing a complaint.104
Recently; one can note a more knowledgeable and wiser use of the ECHR by the Community courts. In cases such as Krombach114 and Carpenter115, apart from a consistent human rights argumentation, the decisions, rendered in the context of preliminary references, leave little room for national courts to exercise their discretionary judgment.116
This undoubtedly supports the idea that the Court of Justice is increasingly acting as a constitutional court. Further proof of this can be seen in the fact that the precedents by the Court of Human Rights have been carefully applied to new cases “by analogy”, thus indirectly reaffirming the autonomous character of the EC legal order.117 This also justifies the legitimate assumption of a more functionalist approach. Suffice it here to recall the Limburse (on the right against self-incrimination) and Roquette Frères (on the right to privacy of business premises) cases118 where the ECJ, mostly concerned with the effectiveness of EC competition rules, refused to apply the more generous interpretation suggested by the Strasbourg court in similar situations.119
In this regard, it is also revealing that in SGL Carbon Advocate General Geelhoed quite boldly stated that it is not possible “simply to transpose the findings of the European Court of Human Rights without more to undertakings.”120 By contrast, where the effectiveness of EC investigative powers is not at stake, the ECJ seems to adopt a more ‘flexible’ approach, taking in due consideration the latest jurisprudence on the applicability of Art. 8 ECHR to legal persons and acting consequently.121
In addition, it should be recalled that in Spain v UK, the Court of Justice explicitly acknowledged the obligation of the latter State to comply with the Matthews precedent, and, insofar as the national measures adopted to that effect did not infringe EC law, dismissed the pleas brought by the applicant.122The autonomous status of the EC/EU legal order can also be inferred by the fact that the Court of Justice is progressively willing to conduct human rights reasoning without feeling the need to quote the case law of the Strasbourg Court.
In Pergan the Luxembourg judges assessed the Commission’s power to adopt and publish its decisions in the field of competition law against the presumption of innocence principle.123 Somewhat surprisingly, in determining the pertinence and the scope of application of the principle (including its legal consequences) the ECJ made reference to the sole Charter.124 Perhaps this amounts to an attempt to further affirm its constitutional role; a posture which closely resembles the one adopted by the ECtHR in Loizidou v. Turkey.125
In claiming their natural role of ultimate guarantors of the fundamental rights enshrined in the respective constitutional Charters, the ECJ and ECtHR have proven willing and capable of interacting notwithstanding the lack of formal coordination between the EU legal order and the Conventional system.
More recently, though, the drive towards independence seems to have taken precedence. In the Kadi and Al Barakaat judgment, in fact, the ECJ has relied extensively on the case law of the Strasbourg Court, but significantly characterized its role in “an autonomous legal system which is not prejudiced by an international agreement.126
The Hassan appeal judgment127 may clarify the position of the ECJ vis a vis the delisting procedure before the UN Committee of Sanctions. It is suggested that confirming the Kadi and Al Barakaat precedent (thereby refusing to endorse the Solange approach of the German Constitutional Court and supported by ECtHR in Bosphorus with regards to the EC/EU legal order128), the EUCJ would effectively ‘kill two birds with one stone’: firstly, it could reconcile the limited jurisdiction of the ECtHR resulting from Behrami and Saramati129 with the need to respect fundamental rights and, secondly, it would prevent a resurgence of the counter-limits doctrine.
91. Art. 275 (2) TFEU.
92. Case C-274/99 P Connolly  ECR I-1611.
93. Case C-185/95 Baustahlgewebe , ECR I-8417. See further in this volume
M. Borraccetti, ‘Chapter 5’.
94. Joined cases C-402 and 415/05 P Kadi and Al Barakaat, n. 80 above, paras 368–370.
95. See F.G. Jacobs, ‘The European Convention on Human Rights, the EU Charter
of Fundamental Rights and the European Court of Justice. The impact of European Union accession to the European Convention on Human Rights’, online at http://www.ecln.net/elements/conferences/book_berlin/jacobs.pdf.; S. Douglas-Scott, ‘A tale of two Courts: Luxembourg, Strasbourg and the growing European human rights acquis’, (2006) 43 Common Market Law Review 629; G. Ress, ‘The legal relationship between the European Court of Human Rights and the Court of Justice of the European Communities according to the European Convention on Human Rights’, in H-J. Blank, S. Mangiameli (eds.), Governing Europe under a Constitution – The hard road from the European Treaties to a European Constitutional Treaty (Springer, 2003) 279
96. But see recently Appl. No 18603/03, André and Others v. France, (2008) unreported, where the ECtHR quoted Case C-305/05 Ordre des barreaux francophone et germanophone and Others  ECR I-5305.
97. S. Douglas-Scott, n. 95 above, at 656.
98. J.P. Puissochet, ‘La Cour européenne des droits de l’homme, la Cour de Justice des Communautées européennes et la protection des droits de l’homme’, in P. Mahoney, F. Matscher, H. Petzold, L. Wildhaber (eds.), Protection des droits de l’homme: la perspective européenne (Heymanns, 2000) 1139; G. Harpaz, ‘The European Court of Justice and its relations with the European Court of Human Rights: The quest for enhanced reliance, coherence and legitimacy’, (2009) 46 Common Market Law Review 105 at 109.
99. In some recent cases, however, the Strasbourg Court has carried out an extensive comparative analysis. See Appl. No 54810/00, Jalloh v. Germany, (2006) Reports IX.
100. Appl. No 28957/95, Goodwin v. UK, (2002) 35 EHRR 447. However, it should be underlined that on this occasion the Court made reference to the European Charter of Fundamental Rights (para 100).
101. Appl. No 28541/95, Pellegrin v. France, (2001) 31 EHRR 651.
102.Appl. No 18357/91, Hornsby v. Greece, (1997) 24 EHRR 250.
103. Appl. No 20323/92, Pafitis v. Greece, (1999) 27 ECHRR 566.
104. See, for instance, Appl. Nos 35673/97, 35674/97, 36082/97 and 37579/97, Schweighhofer and Others v. Austria, (2001), unreported.
105. Appl. Nos 17173/07 and 17180/07, Sevinger and Eman v. The Netherlands, (2007) unreported and Appl. No 13645/05, Cooperatieve Producentenorganisatie van de Nederlandse Kokkelvissarij v. The Netherlands, (2009) unreported.
106. Poirrez v. France, n. 41 above.
107.Cooperatieve Producentenorganisatie v. The Netherlands, n. 105 above. Also cf. Case C-17/98 Emesa Sugar  ECR I-0675 and Appl. No 62023/00, Emesa Sugar v. the Netherlands, (2005) unreported. Although the claim was declared inadmissible rationae materiae, it has been submitted that in Emesa the ECtHR points to a right to comment on the AG’s opinion under Art. 6, paragraph 1 ECHR. See further in this volume M. Borraccetti, ‘Chapter 5’.
108. Case C-212/06 Government of the French Community and Walloon Government, n. 63 above.
109. Case C-127/02 Landelijke Vereniging tot Behoud van de Waddenzee and Others  ECR I-7405.
110. Case C-13/94 P. v. S.  ECR I-2143.
111. In the aftermath of the P v S judgment, see Case C-368/95 Familiapress  ECR I-3689 and Case C-249/96 Grant  ECR I-621.
112. See Case C-60/00 Carpenter  ECR I-6279 and C-109/01 Akrich  ECR
113. See Case C-347/03 Friuli Venezia  ECR I-378.
114. Case C-7/98 Krombach  ECR I-1935.
115. Case C-60/00 Carpenter, n. 112 above.
116. See more recently, and in the context of an action for annulment, Case C-308/07 P Koldo Gorostiaga Atxalandabaso  ECR I-1059.
117. On the other hand, this technique (i.e. citing by analogy) has allowed the use of the Court of Human Rights’ jurisprudence in areas covered by the third pillar (Case C-105/03 Pupino  ECR I-5285) thereby enhancing the operative coherence of the ECJ.
118. See, respectively, Joined cases C-305 to 307, 313 to 316, 318, 325, 328, 329, 335/94 Limburse Vinyl Maatschappij  ECR 3283 and Case C-94/00 Roquette Freres  ECR I-9011.
119. See, for instance, Appl. No 43/1994/490/572, Saunders v. United Kingdom, (1997) 23 EHHR 313, Appl. No 37971/97, Ste Colas Est and others v. France, (2002) 39 EHRR 17 and, more recently, Appl. No 44647/98, Peck v. UK, (2003) EHRR I.
120. Case C-301/04 P SGL Carbon v. Commission  ECR I-5915, para 63. It should be noted that in its judgment the ECJ did not feel the need to contest this argumentation.
121. See Case C-450/06 Varec  ECR I-581, para. 48. In particular, the Court was called upon to balance the audi et alteram partem principle with the duty to respect confidentiality of the undertakings involved in a contract award procedure.
122.Case C-145/04 Spain v UK  ECR I- 7917, para 60.
123. Case C-474/04 Pergan Hifsstoffe  ECR I-4225, paras 75 ff.
124. See Art. 48 CFR.
125. N. 7 above.
126. Joined cases C-402 and 415/05 P Kadi and Al Barakaat, n. 80 above, para 316.
127. Joined cases C-399/06 P and C-403/06 P Hassan and Ayadi, still pending.
128. Although it cannot be excluded that future amendments to the UN listing procedure might lead the ECJ to change its stance.
129. Appl. Nos 71412/01 and 78166/01, Behrami and Saramati v. France, (2007) unreported, paras 121 ff. It will be remembered that in this instance the ECtHR declined its jurisdiction in relation to a pair of cases concerning military personnel from France, Germany and Norway finding that the actions in question were directly attributable to the UN. Most notably, the Grand Chamber held that to decide otherwise would jeopardize the fulfilment of the UN’s main mission, that of securing peace and security (para 149).