Joint communication from Presidents Costa and Skouris
Delegations from the European Court of Human Rights (ECHR) and the Court of Justice of the European Union (CJEU) met on 17 January 2011 at the seat of the CJEU, in Luxembourg, in the context of the regular meetings of the two courts. As is usual on the occasion of these meetings, subjects of common interest were discussed. The first subject related to the application of the Charter of Fundamental Rights of the European Union and the second to the accession of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms.
1. As regards the Charter, it was observed that it has swiftly become of primary importance in the recent case-law of the CJEU. Since 1 December 2009, the date on which the Treaty of Lisbon entered into force and the date on which that treaty conferred on the Charter the status of primary law of the EU, it has been cited in some thirty judgments. Thus the Charter has become the reference text and the starting point for the CJEU’s assessment of the fundamental rights which that legal instrument recognises. It is thus important to ensure that there is the greatest coherence between the Convention and the Charter insofar as the Charter contains rights which correspond to those guaranteed by the Convention. Article 52(3) of the Charter provides moreover that, in that case, the meaning and scope of the rights under the Convention and the Charter are to be the same. In that connection, a “parallel interpretation” of the two instruments could prove useful.
2. The accession of the EU to the Convention constitutes a major step in the development of the protection of fundamental rights in Europe. The Member States of the EU have enshrined the principle of that accession in the Treaty of Lisbon. As regards the Council of Europe, Protocol No 14, which entered into force on 1 June 2010, amends Article 59 of the Convention in order that the EU may accede to it. As a result of that accession, the acts of the EU will be subject, like those of the other High Contracting Parties, to the review exercised by the ECHR in the light of the rights guaranteed under the Convention.
In the context of this review of consistency with the Convention, a distinction can be drawn between direct actions and indirect actions, namely, on the one hand, individual applications directed against measures adopted by EU institutions subsequent to the accession of the EU to the Convention and, on the other, applications against acts adopted by the authorities of the Member States of the EU for the application or implementation of EU law. In the first case, the condition relating to exhaustion of domestic remedies, imposed under Article 35(1) of the Convention, will oblige applicants wishing to apply to the ECHR to refer the matter first to the EU Courts, in accordance with the conditions laid down by EU law. Accordingly, it is guaranteed that the review exercised by the ECHR will be preceded by the internal review carried out by the CJEU and that subsidiarity will be respected.