From Opinion 2/13 to Avotiņš: Recent Developments in the Relationship between the Luxembourg and Strasbourg Courts

Abstract

With its recent judgment in Avotiņš v Latvia of May 2016, the European Court of Human Rights (ECtHR) arrived at its long-awaited answer to Opinion 2/13 of the Court of Justice of the European Union (CJEU) of December 2014.1 In this Opinion, the CJEU prevented the European Union's (EU) accession to the European Convention of Human Rights (ECHR) by declaring the agreement on the accession of the EU to the ECHR incompatible with the specific characteristics and autonomy of EU law. This led to a discussion in the literature as to whether the ECtHR would apply the Bosphorus doctrine in the post-Opinion era as if nothing had happened.2 According to this doctrine, the ECtHR presumes that EU Member States do not depart from their obligations under the ECHR when implementing EU law, because EU law offers protection equivalent to the ECHR. Many commentators hinted at the possibility that the ECtHR would drop this presumption following Opinion 2/13 because of the critical approach of the CJEU towards the ECtHR in the Opinion. This was also based on a remark of the former President of the ECtHR, Dean Spielmann, that the Opinion was a ‘great disappointment’.3 It is also telling that the first official contacts between the CJEU and ECtHR since Opinion 2/13 were only resumed in March 2016 when a delegation of the ECtHR visited the CJEU.4 The ECtHR, however, chose to uphold the Bosphorus doctrine in Avotiņš, a case dealing with the Brussels I Regulation on the mutual recognition of civil law judgments.5 At first sight, the response of the ECtHR in Avotiņš does not seem antagonistic and it seems that the ECtHR avoided entering into an arms race with the CJEU. Closer scrutiny of the judgment reveals, however, that this is not entirely true.