A. Introduction
The relationship between the European Court of Human Rights (ECtHR) and the Court of Justice of the European Union (CJEU) could not be described as under-explored.Footnote 1 Even before the arrival of Article 6 of the Treaty on European Union (TEU) and the further, formal convergences heralded by Articles 52 and 53 of the Charter of Fundamental Rights of the European Union (CFREU), the European Convention on Human Rights (ECHR) acted as a source of ideological and doctrinal guidance for the decisions of the CJEU and as a source of inspiration for the general principles of EU law.Footnote 2 This has led to a somewhat lopsided dynamic, with the CJEU constitutionally empowered—and indeed obliged—to draw from the minimum content of the ECHR while the ECtHR is, largely, obliged to refrain from interrogating or interpreting EU law. The result has been that, historically, the jurisprudence of the ECtHR has been something of a passive source in the interpretation of EU constitutional norms in the area of fundamental rights, shaping the minimum standards of protection provided by the CFREU but not actively challenging the fundamental constitutional norms of the Union’s legal order.
This dynamic between the courts, and the distinct legal orders to which they belong, prioritizes ideas of reference, inspiration, and consideration rather than direct mechanisms of influence and control. This has resulted in what could be described as an indirect judicial dialogueFootnote 3 as part of which the courts do not engage directly with each other but, instead, refract their exchanges through the national courts to which their decisions are directed. It should be noted, in this respect and as detailed further below, that this Article does not purport to exhaustively map or engage with the various kinds of institutional, political, and personal dialogues which also characterize the relationships and exchanges between both courts. Rather, I am interested in how the decisions of one court impact the constitutional structures of the system presided over by the other. The result is that the pattern of dialogue between the ECtHR and CJEU, rather than taking the form of a direct line between Strasbourg and Luxembourg, moves from one court through the courts of Member/Contracting States and then echoes onwards to the other court in a V-shaped pattern of exchange.
While I examine this in further detail in Section C.II, what is notable for present purposes is that the textual and jurisdictional constraints guiding the relationship between the courts, and their practical interaction, has resulted in the creation of persistent, if fluctuating, currents of exchange between the two judicial bodies and the systems to which they belong. As part of each court talks about, and/or is influenced by, the decisions of the other, but rarely speaks directly to its judicial counterparts.
In this Article I am interested in interrogating how this pattern of indirect dialogue is changing—and what this means for the constitutional relationship between the courts. I am particularly interested in examining how the ECtHR’s “procedural turn” has prompted Strasbourg to begin examining issues of EU law as part of an approach more skeptical of the presumption of equivalent protection established in Bosphorus Airways v. Ireland Footnote 4 and which has brought the ECtHR into direct contact—and on occasion conflict—with norms of EU constitutional law. In interrogating the operation and outcomes of this procedural turn, I focus on the ECtHR’s interpretation of the requirements imposed by Article 267 of the Treaty on the Functioning of the European Union (TFEU) which, I argue, illustrates the emergence of an increasingly direct dialogue between Strasbourg and Luxembourg.
The particular significance of this increasingly direct dialogue between the courts is that it has enabled the ECtHR to adopt a role in shaping the constitutional norms of the EU’s legal order beyond fundamental rights. I argue that a result of this is that the ECtHR is, increasingly, positioning itself as a constitutional court of the European Union—a status which has neither an explicit basis in law, nor political support, but which is already suggested by the text of the Union’s constitutional documents and is now, apparently, ascendant in practice.
This role for the ECtHR, and the Court’s intervention in EU law, is significant. It challenges the exclusive role of the CJEU and the national courts of Member States in shaping the meaning of EU law. More fundamentally, it also challenges the characterization of the Union’s legal order as a system which is autonomous and independent, by introducing the influence of an external constitutional source into the supposedly closed “structured network of principles” that operate to bind the institutions of the Union and its Member States to each other.Footnote 5 And all of this is in addition to the specific importance of the preliminary reference procedure itself and how the ECtHR’s involvement has altered that keystone of the Union’s constitutional order.
In analyzing how the ECtHR’s procedural turn has triggered this more direct dialogue with the CJEU, and the consequences of that development for EU law, I proceed in three steps. I begin, in Section B, by describing the patterns of exchange and dialogue which have traditionally characterized the relationship between the CJEU and ECtHR, and analyze the emergence of the “procedural turn” in Strasbourg’s case law. This leads to Section C, in which I argue that this procedural turn in the ECtHR’s jurisprudence has generated a new era in the relationship between the courts, one characterized by a pattern of increasingly direct dialogue on issues of EU law. In this section, I analyze the ECtHR’s consideration of the preliminary reference procedure under Article 267 TFEU as evidence of this new pattern of engagement. I focus, in particular, on how the ECtHR’s interpretation of the Article has diverged from, challenged, and ultimately influenced the interpretation and meaning of the provision by the CJEU. Finally, in Section D, I examine how the changed relationship between the CJEU and ECtHR—and Strasbourg’s intervention in EU constitutional law through its interpretation of Article 267—has positioned the ECtHR as something approaching a constitutional court of the EU, and ask what this means for the role of the ECtHR within the Union’s legal order in the future.
B. Dialogue Between the CJEU and the ECtHR
Much has been written on the utility, and accuracy, of the metaphor of dialogue. In the constitutional context, the term has been used primarily to describe the interactions between the branches of government in constitutional democracies.Footnote 6 The deployment of dialogue is not limited to constitutional literature. Accounts describing the practice of international and constitutional courts have equally coalesced around the metaphor of “transnational judicial dialogue”Footnote 7 that occurs between international institutions and between internationalFootnote 8 and national courts.Footnote 9 Within EU law,Footnote 10 as well as in the study of the law of the ECHR,Footnote 11 much has also been written about the idea, and importance, of dialogue. Contemporary EU constitutionalism has placed a particular emphasis on the idea of dialogue and individual rightsFootnote 12 as part of which dialogue acts as a metaphor for the exchanges that allow institutions to act as partners in defining a middle way between divergent perspectives in order to secure common interpretation of EU law.
A majority of these works are concerned with judicial dialogue/“dialogue des juges.”Footnote 13 While judicial dialogue could refer to any one of a number of dynamics or relationships which center, to a greater or lesser extent, on judges and/or judicial decision makers, in this Article I am concerned with judicial dialogue as it takes place between the ECtHR and CJEU and as it can be observed, and analyzed, in the decisions of those courts. This is not to say that there are not multiple other forms of, and avenues through which, the relationship between these two courts—and their dialogues with each other—could be analyzed and understood. It is, nevertheless, the particular focus of this Article given the importance of that relationship to the future of EU accession to the ECHR, and the normative power which both judicial bodies enjoy.
It is important to acknowledge, in seeking to employ the metaphor of dialogue, that this metaphor is contested.Footnote 14 Manfredi, for example, has argued that more frequently, institutional exchanges are, in fact, monologues or, at best, “notquite monologue[s].”Footnote 15 Critical accounts posit that the meaning of dialogue has been so inflated that it is, at best, unreliable and at worst misleading.Footnote 16 While acknowledging this critique, I consider that the strength of dialogue as a metaphor is that it can enable us to think about how institutional exchanges are like, or unlike, the exchanges that occur in individual, rather than institutional, settings.Footnote 17
“Dialogue” in this sense is evocative of an ongoing, iterative process as part of which parties advance their own perspectives and resolve divergences through compromise and exchange.Footnote 18 The importance of thinking about interaction in this way lies in the nature of the communication described. Using the metaphor of dialogue allows us to consider a kind of accountability-rich exchange as part of our analysis. Dialogue, as Manfredi would remind us, is a manner of communication which requires response.Footnote 19 By employing the metaphor, we frame the exchanges at issue as involving—however imperfectly they are affected—an exchange-based relationship which is colored by the accountability that accompanies the need to answer implicit in dialogue. One party may dominate the dialogue, or another may neglect it, but there can be no doubt that the acts of one party will echo in the considerations of the other, and that a failure to engage is in itself an answer. By thinking about the relationship between the ECtHR and CJEU as a dialogue, it is thus possible to not only engage with the record of exchange evident in the decisions of these courts, but also with the implications to be drawn from the extent and manner of their exchanges, and their context and language.
Catherine Donnelly and Thomas de la Mare have argued that “dialogue” may not always be the most appropriate term for describing the exchanges within the EU legal system. Writing in the particular context of the preliminary reference procedure,Footnote 20 they argue that that process generates not a dialogue but a “discourse” between the Member States, the CJEU, the private party—if any—whose action has prompted the reference, and the Union’s institutions.Footnote 21 They argue that the term “discourse” is more appropriate as a result of this multilateral character and the binding outcomes which it generates.Footnote 22 To this I might add that the process which Donnelly and de la Mare examine is both formally structured and procedurally determined, with a clear hierarchy between the participants and procedural rules governing their conduct. In contrast, the relationship between the CJEU and ECtHR is more accurately viewed as dialogic for two primary reasons. First, although the pattern of exchange between the courts is indirect, it is essentially bipolar. These two judicial organs are, as it were, terminal points between which the exchange of ideas about EU law takes place. The process of exchange is not as active, or as multipolar, as the one which occurs between the CJEU and the other parties to the Article 267 TFEU process.
Second, the exchange between the CJEU and ECtHR is unstructured. What I mean by this is that while the preliminary reference procedure within EU law is bound by the procedural and institutional criteria outlined in the Treaties as supplemented by case law and the rules of the CJEU, the exchanges of reasoning and the cross-referencing of judgments between the two courts examined in this Article is informal and is not subject to procedural rules or, indeed, any consistent practice. Despite the criticisms of dialogue, I have thus proceeded on the basis that, in this case, the term is both appropriate and indeed useful in thinking about the relationship between the CJEU and ECtHR.
I. Direct and Indirect Dialogues
Francesca Episcopo has observed that, following Opinion 2/13, the relationship between the CJEU and ECtHR is one in which the ECtHR has exercised an “indirect form of jurisdiction involving EU action.”Footnote 23 An indirect relationship is, in light of Opinion 2/13, the height of what might readily be expected to pertain between the courts.Footnote 24 Indeed, the CJEU’s objections in the case turned, to a significant degree, on the accession agreement’s potential to undermine the specificity and autonomy of the Union’s legal order, and the exclusive jurisdiction of the CJEU.Footnote 25 In this respect, then, a principal concern for the integrity of the Union’s constitutional structure was the ascension of the ECtHR to a role as a reviewer of the Union’s own acts, a mediator of the relationship between the EU, EU law, and Member States, and a body whose decisions might relegate the CJEU to a subordinate role as part of a dual system in which the judges in Strasbourg might compete with the CJEU for the same cases and, as a result, generate a kind of competitive dialogue or a judging of judges.Footnote 26
And yet, a kind of indirect jurisdiction does persist. This is evident, perhaps in its most basic form, in the formal requirements of Article 6(3) of the TEU and Article 52(3) of the CFREU, which have generated a pattern through which the provisions of the Convention echo through EU law. This pattern, and indeed the ECtHR’s reciprocal taking into account of the decisions of the CJEU, has been analyzed by Amalie Frese and Henrik Palmer Olsen, who found references to the ECtHR in thirty judgments of the CJEU, and thirty-one references to the CJEU in the judgments of the ECtHR—with cross-references present in less than 1% of the judgments delivered by both courts during the period examined.Footnote 27 The more significant pattern, for the purposes of this Article, was their finding that the ECtHR was increasingly ready to comment on the interpretation of EU Directives adopted by the CJEU in its more recent decisions.Footnote 28
The crossreferences by the CJEU and ECtHR can be read as representing an inquiry into the relationship between the two courts, and between their respective legal orders. However, it is challenging to locate a consistent and explicit practice or approach in the exchange—or a sustained engagement on particular issues.Footnote 29 In a majority of the cases identified by Olsen and Frese, the courts are, at best, engaged in an extractive pattern as part of which the jurisprudence of one reinforces the conclusions of the other but in which there is little substantive engagement. In this respect, the traditional influence of the courts on each other’s decisions is best described as “indirect’”—characterized by sporadic cross-referencing as part of a pattern in which the features of accountability and exchange needed for a dialogue were minimally present but as part of which the courts did not speak “to” each other but rather communicated their views “through” allusions to the decisions of the other court.
Since Olsen and Frese undertook their examination, however, there has been a growth in the number of cases in which the ECtHR has engaged more directly with the interpretation of EU law. These cases, of which I examine a single strand in this Article,Footnote 30 are characterized by a narrow deployment of the Bosphorus doctrine and a consistent engagement with the question of whether Member States have given full force and effect to EU law—an examination undertaken by analyzing the procedures employed at a national level. This is, I venture, a particular result of what has been referred to as the ECtHR’s “procedural turn.”
II. The Procedural Turn of the ECtHR
In the last decade, scholarship concerning the ECtHR has begun to consider, as indeed the Court has, the role and utility of procedural processes and safeguards as supplementary, or core, aspects of human rights protection under the ECHR. This has been articulated by some as constituting a “procedural turn” in the Court’s decisions. Precisely what this means is debatable, with the label being used to describe a variety of loosely associated but otherwise distinct patterns within the Court’s jurisprudence. Jon Petter Rui has argued that the turn is a result of the Interlaken, Izmir and Brighton Declarations and efforts by the ECtHR to maintain a degree of distance from questions of fact as determined by national courts.Footnote 31 As part of this, Rui argues that the ECtHR has fostered an approach in which it increasingly adopts a procedural review of the decisions of national courts, focusing on their reasoning and requiring “cogent reasons” in order to depart from the decided facts.Footnote 32
Whether or not Rui is correct to identify the ECtHR’s procedural turn as being a result of this phenomenon alone is uncertain. Janneke Gerards has argued that the phenomenon is broader and that there is a detectable typology of cases associated with the turn. As part of that typology, the Court’s decisions can be separated into two categories.Footnote 33 The first consists of those cases where the Court has established that States have a positive obligation of a procedural nature under the Convention right at issue—what Oddný Mjöll Arnardöttir refers to as the “procedural rights approach.”Footnote 34 The second consists of cases where the quality of the national decision-making processes affects the court’s review of proportionality or reasonableness—what Arnardöttir refers to as “procedural review strictu sensu” and which can include, but exceeds, the kind of deferential review identified by Rui.Footnote 35
This latter category of cases involving procedural review strictu sensu includes decisions in which the ECtHR has emphasized the examination of national procedure in determining the strictness of review before the ECtHR.Footnote 36 Patricia Popelier is a proponent of this approach and has argued that a concern with procedural quality acts as a weathervane for the appropriate balance which the ECtHR should strike between intervention and deference in determining the breadth of the margin of appreciation in its decisions.Footnote 37 This mirrors Gerards’ argument that a theory of “procedural democracy” supports the employment by the Court of a two-tiered model of review as part of which it first reviews the procedural substance of the challenged measure to determine the coherence and integrity of the approach adopted by the national court, before determining whether to undertake a “substantive review” of the merits of the case.Footnote 38
In respect of the former category, and those cases involving the “procedural rights approach,” certain Convention rights have an evident procedural aspect. Eva Brems has argued that these procedural components are present in almost all Convention rights, though they are certainly most noticeable in Articles 2, 3, 6, and 8, as well as Article 1 of Protocol 1 of the ECHR.Footnote 39 In this Article, I adopt the broader understanding of the procedural turn as a pattern of decisions encompassing the two typologies identified by Arnardöttir and as part of which the ECtHR has displayed an increased emphasis on the presence or absence—as well as the quality—of national legislative and judicial deliberations when examining allegedly rightsinfringing measures.Footnote 40
I am specifically interested, as I examine in the next section, in how this kind of procedural analysis has led the ECtHR to a more robust engagement with EU law and—as a result—a more direct dialogue with the CJEU. In exploring this pattern, I am particularly interested in the ECtHR’s consideration of the right to a fair trial under Article 6 of the ECHR, and the way the Strasbourg court has interpreted the obligation to make a preliminary reference under Article 267 of the TFEU.
C. Article 267 TFEU and the Emergence of a More Direct Dialogue on the Preliminary Reference Procedure
The preliminary reference procedure under Article 267 of the TFEU has been described as the keystone of the Union’s judicial order.Footnote 41 The procedure performs a critical role in furthering the integration of the Union by providing a dialogic mechanism through which debates about the meaning and scope of EU law can be resolved.Footnote 42 The result is that the procedure functions to retrench the doctrine of supremacyFootnote 43 by supporting the harmonization of EU law, promoting legal certainty,Footnote 44 and advancing the broader constitutionalization of EU law.Footnote 45 Interpretations of the scope and content of Article 267 affect a core aspect of the Union’s constitutional character, and one which has practical impacts for individual citizens. It is this, in particular, which makes the ECtHR’s engagement with Article 267—and the impact of that engagement on the later decisions of the CJEU—particularly significant.
I. A Tentative Engagement with the Preliminary Reference Procedure
Since its decision on admissibility in Dotta v. Italy,Footnote 46 the ECtHR has slowly developed a body of decisions which engage with the role of the preliminary reference procedure as part of the vindication of the right to a fair trial under Article 6 of the ECHR. In Dotta, the ECtHR found there was no absolute right to a preliminary reference, and that Article 6(1) of the ECHR could not provide such a right. This refusal to ground an unqualified entitlement was consistent with the broad terms of the then text of the reference procedure and its interpretation by the CJEU. However, the Court did recognize that in certain circumstances the refusal by a national court to make a reference might undermine the principle of procedural fairness. This caveat was, arguably, a first, tentative step beyond the kind of indirect dialogue evidenced by mere cross-referencing of the decisions of the CJEU, or the deferential invocation of the Bosphorus test.
And yet, the dialogue was still not entirely direct. The ECtHR was, after all, directing its decision to the courts of Member States rather than to the CJEU, and while rendering a decision broadly in line with the thinking of the CJEU, did so without referencing the CJEU’s decisions. A similar style of engagement was evident in the decision, one year later, in Coëme v. Belgium,Footnote 47 and while this case involved a purely domestic reference, the ECtHR took the opportunity to observe that it was not impossible that, in certain circumstances, a refusal by a national court of last instance to make a reference might infringe the right to a fair trial under Article 6 “in particular where such refusal appears arbitrary.”Footnote 48 The decision in Coëme did not mention Article 267 of the TFEU, or even the European Union. And yet, the ghost of Article 267(3) moves beneath the surface of this observation. In Coëme there is a very real sense that the ECtHR is poised, if the correct case presents itself, to engage more actively with the requirements of the preliminary reference procedure.
This was borne out by the Court’s later admissibility decisions in Matheis v. Germany,Footnote 49 Bakker v. Austria Footnote 50 and John v. Germany,Footnote 51 which invoked the idea of arbitrariness in determining that a refusal to make a reference under Article 267 of the TFEU was a violation of Article 6 of the ECHR. The decision in John is the most detailed in this respect. In it, the Court reiterated the position outlined in previous cases but went further in two fundamental respects. First, the Court undertook an assessment of whether the national body in question—the Hanseatic Court of Appeal—was a “court or tribunal” required to make a reference—an issue which had previously fallen to the CJEU to determine in several cases. The ECtHR found that the Hanseatic Court of Appeal was not a court of final appeal and, as such, had discretion as to whether to make a reference. Second, the Court considered whether the refusal to make the reference was arbitrary. In circumstances where the applicant had not expressly requested such a reference and had not articulated any “express and precise reasons” for the necessity in his submissions to the court, the ECtHR concluded that the refusal was not arbitrary.Footnote 52
While acknowledging that the decision in John was made on the basis of admissibility, it nevertheless evidences the start of a more direct engagement by the ECtHR with the meaning and practical requirements of the preliminary reference procedure. While alluding to Bosphorus, the Court actively applied the terms of a European treaty article and made findings both about the character of a national adjudicative body under EU law and, perhaps more significantly, what an applicant must do in order to be considered to have made a valid request for a preliminary ruling. In doing so, the Court imposed a procedural requirement for the making of a request not evident on the face of the then EC treaty. What is significant is not the detail of the requirement but the Court’s decision to derive and articulate such a requirement on the basis of EU law—and to overtake the decisions and/or interpretation of the CJEU in doing so.Footnote 53
These early decisions could be read as evidence of the ECtHR’s desire not to engage with EU law. They are decisions on admissibility—and largely inadmissibility—and they deal with issues of EU law in a manner that, as Canela particularly demonstrates, defers to the assessment of national courts, and which evidences a desire not to engage in parsing the decisions of the CJEU. And yet, if Strasbourg seemed reluctant to assess the coherence or substance of the decisions of the CJEU, it was quite ready to state the conditions under which the text of a European treaty was satisfied and the threshold which must be met in that regard. There is a sense that the ECtHR has a growing, if not explicitly acknowledged, appetite to detail the procedural requirements to be implied into the treaty text. It was an appetite which grew under the influence of the Court’s more general procedural turn, and bore fruit in the form of a more robust, and direct, dialogue on Article 267 of the TFEU which emerged some ten years after Dabbi in the decision in Ullens de Schooten. Footnote 54
II. The Emergence of a More Direct Dialogue
In Ullens de Schooten,Footnote 55 the ECtHR found that where, in exceptional cases, a court of last instance refused to make a preliminary reference, that court was obliged pursuant to the third paragraph of then Article 234 to not only avoid making an arbitrary decision but also to justify its refusal by giving reasons for it.Footnote 56
In Ullens de Schooten, the Belgian Court of Cassation had declined to make a preliminary reference on the basis that the issue was acte clair and had set out the decisions of the CJEU which supported that conclusion.Footnote 57 While the ECtHR determined that the reasons provided were sufficient to discharge the duty to give reasons, the ECtHR nevertheless established the existence of such a duty. The ECtHR also noted that it would not exclude the possibility that a similar obligation existed in respect of national courts which were not courts of last instance.Footnote 58 The conclusion in Ullens de Schooten thus affected not only courts captured by the obligation to make a reference under Article 267(3) but, potentially, any court making a decision not to refer under Article 267.Footnote 59
What is particularly striking about Ullens de Schooten is that it seems to have pre-empted the decision some ten years later in Consorzio Footnote 60 in which the CJEU reaffirmed the CILFIT criteria and added a further addendum to the effect that there is an obligation on national courts that refuse to make a reference to offer a justification for any such refusal.Footnote 61 The decision in Consorzio was significant. Maher has noted, for example, that the obligation to give reasons which it established imposed greater transparency in terms of judicial reasoningFootnote 62 and created the possibility of Köbler damages in cases where a reference was refused.Footnote 63 This is, indeed, significant. Yet, the requirement made explicit in Consorzio had been lurking since the ECtHR’s decision in Ullens de Schooten and had been repeated in later decisions of the Strasbourg court.Footnote 64 It had even, on occasion, been supplemented by additional criteria.
Thus, in the 2014 decision in Dhahbi,Footnote 65 the ECtHR noted that Article 6 of the ECHR imposes a requirement to not only aver to the reasons for a refusal to make a reference, but also to the fact of the request for a reference having been made. More recently, in Sanofi v. France, the ECtHR noted that there was a requirement to specifically aver to the CILFIT criteriaFootnote 66 and to rehearse the provisions of EU law or decisions on which basis the national court considered its refusal was justified.Footnote 67 The ECtHR also found, in Rutar Marketing, that it was not open to a national court to simply substitute the arguments offered by the party opposing the referral in place of its own reasons and that the court must, instead, show evidence of engagement with the arguments of both parties.Footnote 68
Consorzio is, of course, a single example, and it is still less than direct in its adoption of the decisions of the ECtHR. The CJEU in Consorzio did not aver to Ullens de Schooten, or to the jurisprudence of Strasbourg on the issue of preliminary references more generally. Indeed, the ECtHR in its decisions on Article 267—and its predecessor articles—is equally silent on the case law of the CJEU. It is, nevertheless, difficult to make the case that the decision in Consorzio was made entirely in ignorance of the Strasbourg court’s activity, and it would be neither reasonable nor realistic to think that neither court was or is aware of the decisions of the other.
The more sustainable conclusion, I argue, is that both courts are aware of the decisions of the other, but that they have chosen to cite the decisions of their own colleagues rather than to draw on the decisions of another court for authority which can readily be supplied from more proximate sources. That perspective is particularly relevant given the CJEU’s own view that it is engaged in the project of protecting those human rights guaranteed in the ECHR—even in the absence of an express obligation to that effect—and that “its caselaw bears witness” to this through the increasing number of references to the decisions of the ECtHR.Footnote 69
Despite this admission, the dialogue between Strasbourg and Luxembourg is difficult to trace, moving beneath the surface of the judgments concerning Article 267 and being directed, even in later decisions, to national courts or Contracting States. In this respect we might think of it as representing a more direct—rather than a simply direct—dialogue between the courts, filtered through the prism of the national court or Contracting State to which the ECtHR’s decision is directed such that the pattern, rather than taking the form of a direct line between Strasbourg and Luxembourg, takes a “stopover” on its way, with the message directed to the ECHR Contracting State but bouncing from there onwards to the CJEU in a V-shaped dialogic pattern.
This filtering through the prism of national courts means that the pattern of exchange between the ECtHR and CJEU is subject to their mediating influence. And yet the message is, ultimately, directed from the ECtHR to the CJEU in circumstances where it is a constitutional tenet of the latter court’s order which is under consideration in Strasbourg. The ECtHR’s interpretation of EU law thus echoes onwards, ascending from Contracting States to the CJEU—not only in those cases affected by Article 52(3) of the CFREU but also, evidently, in a broader range of decisions.
It might be suggested that the fact of the V-shaped pattern in itself renders the intervention of the ECtHR in EU law less significant. Strasbourg is not, after all, reviewing the decisions of the CJEU directly, or engaging in a debate with Luxembourg about the coherence or accuracy of its interpretation of the requirements of Article 267. Yet, the ECtHR is, nonetheless, indirectly providing its views as to what Article 267 should require—and has pre-empted the CJEU in doing so. Indeed, its intervention in this constitutionally significant area of EU law has also led to a change in the CJEU’s approach, whether or not the CJEU recognizes the ECtHR’s role in prompting that shift.
The stopover at a national level may, therefore, deflect some of the conflict which might accompany the ECtHR’s interpretation of EU law, but it cannot erase it. Moreover, the involvement of the contracting party—and Member State—within this V-shaped dialogue is perhaps all the more significant because Article 267 of the TFEU is intended, and perhaps also idealized, as an article that mediates the relationship between the EU and its Member States. By interposing its views within this relationship, the ECtHR is intervening in a relationship which is defined as having a distinctly constitutional character in the Treaties. Yet this is not the only change that the ECtHR is effecting on the relationship between the Union and its Member States through its consideration of preliminary reference procedure. Strasbourg has also posited a fundamental reorientation of the procedure itself.
III. Beyond Consorzio: The Rise of Individuals Within the Preliminary Reference Procedure
The ECtHR’s interpretation of Article 267 of the TFEU has not only developed the procedural requirements of the preliminary reference procedure, but has also reoriented the Article 267 process in a subtle and perhaps largely unobserved way. The CJEU has long emphasized that the relationship at issue in Article 267 is between the referring court and the CJEU, “completely independent of any initiative by the parties.”Footnote 70
Unlike an action under Article 263 of the TFEU, which is available to natural persons and seeks to give citizens of the Union a means of challenging measures of EU law or acts of the institutions, Article 267 is not envisioned by the CJEU as being a litigation tool for individuals but, instead, as a mechanism which serves a technical purpose in upholding the constitutional principles of the Union—supremacy, uniformity.Footnote 71 To the extent that Article 267 has any kind of “public interest” function, it is arguably seen by the CJEU as a happy, but secondary, result of the Article’s primary purpose.
In this respect, the procedure could be considered to be, if not primarily then certainly to some significant extent, an enforcement structure rather than a means of securing individual rights. The mechanism is intended not to act as a means for parties to challenge provisions of EU law but, rather, to ensure consistent and harmonious interpretation and application of European law. Through the preliminary reference procedure, EU law becomes embedded within national constitutional orders. A Member State might, after all, seek to ignore or minimize the impact of a decision of the CJEU. It is much harder to treat the decisions of its own national court with the same complacency or disregard.
In contrast, the ECtHR has arguably placed the individual applicant at the center of its considerations. In this respect, the ECtHR has acted to defend rights to a fair trial under the civil limb of Article 6 of the ECHR, and in doing so has identified and vindicated a right of individual citizens, as litigants, to access justice through the use of Article 267. Because of the importance of the preliminary reference procedure in establishing and maintaining the relationships on which the Union relies, the ECtHR has also, in interpreting Article 267 placed constraints on, and conditioned, the relationship not only between citizens and the institutions of their states, but also, indirectly, the relationships of citizens and national institutions with the Union. In particular, Strasbourg has shifted the focus of the preliminary reference procedure from the duties owed as between national courts and the CJEU—as emphasized in Consorzio and indeed other decisions—to uphold and effect the core principles of unity, efficacy, and uniformity, towards a focus on the duties owed between national courts and individual parties.
This is, to some extent, unsurprising given the nature of the claims which come before the ECtHR and its jurisdiction to consider those claims—a jurisdiction which is necessarily driven by individual applicants. And yet, it represents a challenge to the position adopted by the EU. In the approach adopted by the ECtHR, while applicants have no right to a reference, the making of the reference is framed as a tool of litigation to assist individuals in making their claims. In framing the preliminary reference in this way—as a tool which is intended to serve citizens as much as support abstract theories of constitutionalism—the ECtHR has arguably challenged the CJEU’s preoccupation with institutional actors and redefined the role of Article 267. Applying the ECtHR’s lens, the preliminary reference procedure becomes as much a tool for safeguarding individual rights and entitlements under EU law as a means of securing the abstract principles of the Union’s constitutional order. This is not an aspect of the ECtHR’s articulation of Article 267 which has found a place in the jurisprudence of the CJEU to date.
Strasbourg’s interpretation of the preliminary reference procedure does not only result in the production of a list of procedural requirements not detailed in the text of Article 267—it also challenges the conceptual foundations of the article itself. This, inevitably, invites questions about the future of Article 267, and about how the ECtHR’s involvement in shaping the Article will affect the CJEU’s future engagement with the meaning and scope of the reference procedure. The procedural aspects of the ECtHR’s interpretation of Article 267 have found a home in the CJEU’s jurisprudence, and there is reason to think that this more basic reorientation might equally be echoed in the CJEU’s decisions over time.
This is particularly the case in circumstances where that reorientation might go some way towards providing a more complete suite of remedies for individuals seeking to challenge EU law. This is so for two reasons: first, because the rules of standing under Article 263 TFEU are both difficult to parse and provide a somewhat fractured coverage of potential litigants and basis for litigation challenging EU law; and second, because in reviewing refusals to make a reference under Article 267(3) of the TFEU, the ECtHR performs a function which the CJEU cannot resolve itself—providing a remedy in cases where a request for a preliminary reference is refused and access to further appeal is unavailable either because the refusing court, while technically not the court of final appeal, is perhaps functionally so, or because the failure to make the reference means the case will be decided on the basis of a legal interpretation which cannot favor the applicant.Footnote 72
This would, of course, represent a further retrenchment of the ECtHR’s involvement with—and influence over—the Union’s constitutional architecture and prompts the perhaps inevitable question of how we should conceive of Strasbourg’s role in this process. It is evidently not the case that the ECtHR is simply drawing on EU law as a source of inspiration, justification, or authority. Rather, in cases like Ullens de Schooten, EU law is, to a significant extent, the subject matter of the dispute, and is influenced by the outcomes of Strasbourg’s decisions. While Episcopo has argued that the ECtHR has a kind of indirect jurisdiction over EU law, I think the more fundamental question now, in light of the ECtHR’s engagement with a central, constitutional feature of the Treaties and in doing so perhaps encroaching on the CJEU’s role as the sole “guardian of the treaties,”Footnote 73 is whether the ECtHR is assuming the role of a constitutional court of the European Union.
D. The ECtHR as a Shadow Constitutional Court
The issue of whether the ECtHR can be characterized as a constitutional court, simpliciter, has been examined on several occasions. Presidents of the court have themselves considered that the ECtHR might ascend to a constitutional role,Footnote 74 and the court has repeatedly characterized the ECHR as “a constitutional instrument of European public order.”Footnote 75 Of course, labelling the ECtHR as a constitutional court could refer to several discreet characterizations. Laurence R. Helfer, for example, considers that the label could import three meanings. First, it could be an acknowledgement that the judges of the ECtHR will test the validity of legislation against higher rules designed to protect individual rights, in a manner similar to a national supreme court. Second, the label could be an effort to refer to the approach of the Court, which uses constitutional review as its primary method of judicial decisionmaking. Third, it could refer to the ECtHR’s didactic approach to its case law, as part of which it seeks to shape the domestic institutions of Member States and influence them towards adopting a vision of the rule of law as articulated by Strasbourg.Footnote 76
The ECtHR is now generally recognized as having the features of a constitutional court in line with one or more of the broad and sometimes diverging bases outlined by Helfer.Footnote 77 Perhaps the most prominent theory of why the ECtHR can be considered a constitutional court has been advanced by Alec Stone Sweet, who broke down Hans Kelsen’s “idealized” model of constitutional courtsFootnote 78 to identify four features that such courts generally possess. First, the court will have a monopoly on the power to invalidate or annul laws on the basis of their constitutionality in the court’s role as a “negative legislator”. Second, the court must engage in the resolution of disputes concerning the interpretation and application of the constitution. Third, the court must occupy a distinct “constitutional space” which is neither clearly “judicial”—the enforcement of pre-existing norms—nor “political” —the creation of new legal norms—and is independent from other branches of government, including the judicial branch. Finally, the court must engage in the review of legal measures “in the abstract” before they are enforced or enforceable.Footnote 79 Within these criteria, Stone Sweet identified further delineations between constitutional courts which adopt various review models, namely the abstract,Footnote 80 concrete,Footnote 81 and “constitutional complaints”.Footnote 82
In the case of the ECtHR, Stone Sweet considered that the Court’s authority is comparable to that of a national constitutional or supreme court in that in practice the Court is well positioned to exercise decisive influence on the development of a rights-based European model of constitutionalism, with the judges confronting the same kinds of issues that their national colleagues do. Moreover, the ECHR’s legal system, while not possessing the authority to annul legal acts, enjoys a “structural judicial supremacy,”Footnote 83 provides for individual justice and the review of national acts, and can make awards of damages where rights are infringed, all of which should, a priori, be considered features of a constitutional jurisdiction.Footnote 84
To the extent that the ECtHR does not possess a power to annul or invalidate laws and this forms the primary objection to its authority as a constitutional court, Stone Sweet notes that this factor has become less significant over time, as Contracting States have become more integrated within the system established by the ECHR to the point that the ECtHR enjoys a de facto, if not a de jure, power to annul legislation by virtue of the removal of both the authority and legitimacy of legal orders that do not comply with the Court’s decisions. As a result, Stone Sweet’s central contention is that the ECtHR functions as a “shadow constitution” in many jurisdictions.Footnote 85 This functional analysis of the ECtHR as a constitutional court has found favor more broadly. Steven Greer and others have thus proposed that the ECtHR delivers a kind of “constitutional justice” through its adjudication of human rights.Footnote 86 Geir Ulfstein has advanced a similar view and has argued that the ECtHR has a constitutional role which turns on the fact that its review of national measures has legal consequences both for the relationship between the state and its citizens and between the institutions of the state itself.Footnote 87
These various accounts coalesce around the contention that while the ECtHR reviews the “conventionality” rather than the “constitutionality” of measures and lacks the power to directly annul national measures, it nevertheless operates in areas traditionally seen as possessing a constitutional character and performs constitutional functions in enforcing compliance with fundamental rights, policing state action, and guaranteeing the rule of law that justify its characterization as a constitutional court.Footnote 88 This does not, however, mean that the ECtHR is a constitutional court of the EU.
The CJEU itself was not established as a constitutional court—rather, its constitutional role is based on the understanding that the Treaties are constitutional in nature.Footnote 89 This assumption has been made by the Court itself, which has referred to the Treaties as “the Constitutional Charter of the European Communities”Footnote 90 and has used constitutional concepts such as primacy to reinforce that order.Footnote 91 In this respect, then, we might at least say that the CJEU is a “constitutionalizing” court, but it is reasonable to push this further. If we accept—as a majority of scholars now do—that the mandatory minimum for recognition as a constitutional court is not bound by the Kelsenian requirements traditionally applied to civil law legal systemsFootnote 92 but rather requires a functional analysis as described in the case of the ECtHR, then the CJEU can be characterized as a constitutional court. This is particularly so in a context in which the Treaties and Charter define, separate, and police the competences of the Union and its institutions—mirroring the “horizontal” provisions of a traditional constitution and its role in delineating and policing the institutions of government—Footnote 93 provide for the protection of fundamental rights—in a corollary to the “vertical” provisions of a traditional constitution—and define the relations between the Union, her Member States, and third countries—mirroring the role of a traditional state in dictating and guarding the rights of citizens, limiting the powers of the state, and engaging in international relations.
In a functional sense, the CJEU is the court which interprets, enforces and acts as guardian of the Union’s constitutional documents—documents which in themselves perform many of the same functions as the constitution of a state.Footnote 94 And yet, the CJEU also does more than this: annulling administrative decisions, taking actions regarding an EU institution’s failure to act, commencing infringement actions, overseeing appeals, and considering preliminary rulings. In this respect, the Court has powers of annulment and review equal to, but perhaps also wider than, a traditionally Kelsenian constitutional court. Jan Zglinksi has recently argued that the Court of Justice’s Grand Chamber in particular is acceding to a new role as an “apex” court.Footnote 95 Taken in combination, I think we can certainly say that is the case—but I think that when we examine the particular disputes which the CJEU as an institution arrogates to itself, including the expansion to the General Court of the power to consider preliminary references,Footnote 96 there is a strong case that by exercising exclusive and final jurisdiction in these areas, and given its powers and functions, the CJEU is, in a very real way, the constitutional court of the Union.Footnote 97
The EU, however, remains a non-contracting party to the ECHRdespite the commitment contained in the Lisbon Treaty to accession to the Convention, rendering the idea of the ECtHR assuming a role as a constitutional court a dubious prospect. This is only reinforced by the contents of Opinion 2/13, which emphasized that the potential for the ECHR to bind the EU and its institutions and Member States and “form an integral part of EU law” was troubling in circumstances where the mechanism provided by Protocol No. 16Footnote 98 —Protocol No. 16 permitted courts of final appeal to request advisory opinions from the ECtHR on questions of principle relating to the interpretation or application of the rights and freedoms guaranteed by the ECHR—would affect the autonomy and effectiveness of the preliminary ruling procedure provided in Article 267 because of the possibility that a request under the Protocol could trigger a system by which the preliminary reference procedure could be circumvented.Footnote 99 In that respect, the impacts on—or undermining of—the preliminary reference has formed a central concern in respect of EU concession since at least Opinion 2/13.
While the CJEU did not consider that an international agreement providing for the creation of a court responsible for the interpretation of its provisions and whose decisions are binding on the Court of Justice would, in principle, be incompatible with EU law, the CJEU was concerned that under the accession agreement, the ECtHR could bind it, or other institutions, in the exercise of their internal powers and hold the institutions to a “particular interpretation of the rules of EU law.”Footnote 100 The primary concern in this respect was that such external intervention and “control” would alter the fundamental character of the EU, which, in the Court’s view, lay in the “structured network of principles, rules and mutually interdependent legal relations linking the EU and its Member States.”Footnote 101 This system was in turn secured by the Union’s judicial system which, through principles including autonomy, ensured consistency and uniformity in the interpretation of EU lawFootnote 102 and secured the judicial protection of individual rights under EU law, as part of which Article 267 of the TFEU formed “a keystone” of the Union’s legal order.Footnote 103
A principal concern for the integrity of the Union’s constitutional structure in Opinion 2/13 was thus the ascension of the ECtHR to a role as a reviewer of the Union’s own Acts in a manner that might intrude upon the relationship between the EU and its Member States—in particular through Article 267—and the potential that the ECtHR might either intrude on the CJEU’s interpretation on the rules of EU law or relegate the CJEU to a subordinate role as part of a dual system in which the judges in Strasbourg might compete with their colleagues in the CJEU for the same cases—and perhaps also to deliver the “most” correct interpretation of the law—thus generating a kind of competitive dialogue or a judging of judges.Footnote 104
The Draft Accession Agreement which formed the basis of Opinion 2/13 had sought to facilitate EU accession to the Convention—as that touched on the jurisdiction of the CJEU—in part through procedural mechanisms including the rule of attributionFootnote 105 and the co-respondent mechanism,Footnote 106 coupled with the prior involvement mechanism,Footnote 107 which, it was hoped, would resolve any potential for claims to be advanced in ways that excluded the appropriate actor. While the corespondent and prior involvement mechanisms proved to be issues of particular attention in the subsequent Opinion, especially in respect of the manner in which they would be identified, it is perhaps Protocol No. 16 and the issues raised in that respect which provide the most enduring matter of concern.
The negotiation of a new accession agreement after Opinion 2/13—which only began in 2020—focused on the text of the Opinion itself in seeking to formulate an alternative route towards accession. Reflecting the CJEU’s concern about co-respondents, such decisions would now be a matter for the EU to determine based on a “reasoned assessment,”Footnote 108 while decisions on inter-partes cases would also be arrogated to the Union. Two particular points raised by the text of the Revised Draft Accession Agreement are perhaps worth noting, however, in as much as it is unclear whether they resolve the concerns of the CJEU—or perhaps raise fresh ones.
First, the co-respondent mechanism under Article 3 of the Draft Accession Agreement requires that the CJEU have an opportunity to consider a dispute involving an issue before an applicant may claim to have exhausted their domestic remedies, thus rendering the matter admissible before the ECtHR.Footnote 109 While Article 3 of the Draft Accession Agreement does not state that the ECtHR is bound by the assessment of the CJEU—in the same way that it is not bound by the findings of the courts of a state party—this mechanism would create a certain hierarchy between the courts.
Whether the CJEU’s precedence in consideration would make it conceptually the more senior or more junior court in this structure is debatable. Despite this, it is certainly the case that the proposal would result in a further integration of the ECtHR within the constitutional architecture of the Union, with the CJEU bound to interpret EU law consistently with the ECtHR pursuant to Article 52(3) of the Charter as part of a Convention-led human rights analysis—as is currently the case—but with the potential—and, I would tentatively suggest, still controversial—introduction of a further step on to the ECtHR for consideration. While that journey onward to Strasbourg is not framed as an appeal within the Revised Draft Accession Agreement, it is hard not to see it as such. And in the context of the CJEU’s increasingly “apex” character,Footnote 110 a result may be that the ECtHR emerges as a constitutional court in a more established sense.
Second, Protocol No. 16 also remains potentially problematic. Article 5 of the Revised Draft Accession Agreement provides that a court or tribunal requesting an advisory opinion under the Protocol would not be considered a highest court or tribunal if the question falls within the scope of EU law. The result would be an effective inability of national courts to seek advisory opinions in cases raising issues of EU law, in circumstances where the power under the Protocol is reserved to apex courts. This, on its face, appears to resolve any objection which would follow the logic of Opinion 2/13. However, the revised Article 5 is silent on how the decision about whether a question falls within the scope of EU law is to be made—and by whom. As Tobias Lock has, I think, correctly noted, this ambiguity may pose a stumbling block if the CJEU maintains its stance on the autonomy of the EU legal order as articulated in Opinion 2/13 and subsequent cases.Footnote 111
And yet, it appears that the ECtHR is already accomplishing at least two of the things which the CJEU feared would come with accession, first by rendering its own diverging interpretation of EU law in respect of the procedural requirements of Article 267 TFEU, and second by intervening in the relationship between the EU, its institutions, and its Member States by reorienting the relationship between those actors as it is framed by the preliminary reference procedure. In those circumstances, the objections of the CJEU to the Protocol ring a little hollow. The restructuring of the relationship between the CJEU and ECtHR which the proposed corespondent mechanism would introduce seems to complicate this further. Even if no objection is taken to the Protocol, a slide towards a system where the CJEU is increasingly styled as an apex court and the ECtHR as, at a minimum, a joint constitutional court seems, if not inevitable, then certainly far more possible than it did in 2013.
Absent accession, the ECtHR does not, of course, have either the power to annul measures of EU law or a kind a structural supremacy within the hierarchy of the Union which would allow this shortcoming to be overcome or dismissed as it can be in the case of the ECtHR and CJEU when analyzed as stand-alone constitutional courts. And yet, what is evident in the case of Article 267 of the TFEU—and the test of the Revised Draft Accession Agreement—is that the decisions of the ECtHR are, increasingly, concerned with the correct interpretation of EU law, and touch the constitutional heart of the Union.
The ECtHR may not be a full-blooded constitutional court of the EU, yet it is a constitutional court in its own right, and one which enjoys an increasingly direct influence on, and dialogue with, the constitutional core of the EU’s legal order through its consideration of Article 267. In this respect, I think the ECtHR might usefully be thought of as a shadow constitutional court of the Union—a body whose influence permeates the EU’s constitutional architecture and thinking, and whose rights-based approach to aspects of EU law beyond fundamental rights is increasingly influencing the meaning of EU law. For the European Union and the CJEU, which were so concerned with limiting the potential for a guerre des juges, in Opinion 2/13 the ECtHR’s growing appetite for procedural issues may only heighten the extent to which Strasbourg occupies this role as the Court moves beyond Article 267 of the TFEU to consider other cases which not only bear on, but directly engage the interpretation of, EU law.
The question for the CJEU, and indeed the Union, is whether—and how—it can accommodate the practical reality that, with or without formal accession by the EU to the ECHR, the Union’s constitutional order is increasingly and fundamentally integrated with the Convention—and its court.
Acknowledgements
The author would like to express her sincerest thanks to Professor Dorota Leczykiewicz, and Dr Marie-Luce Paris as well as the members of the European Lawyers Assembly and the Dublin EU Law Working Group for their comments on, and engagement with, earlier drafts of this article.
Ethical Approvals
None
Conflicts of Interest
None
Competing Interests
The author declares none.
Funding Statement
This article was produced with support from Erasmus+ as part of the work of the Trinity College Dublin Jean Monnet Centre for Excellence on Freedom of Expression and Democratic Resilience.
Open access
