Inter-Party Mechanism and the EU: Possible Implications from the Strasbourg’s Jurisdiction?

Abstract

This chapter provides an analysis of the inter-party complaint procedure in an EU-ECHR post-accession context, tackling not only the reconciliation of EU and Convention regimes to enable the utilization of this mechanism but also means which show evidence of how EU law autonomy may be protected therein. The chapter responds to the research sub-question: ‘Whether and, if yes, how can ECHR and EU Law reconcile to allow for EU/Member States to use inter-party mechanism of ECHR?’ The chapter examines carefully the EU law limitations on the use of external tribunals for purposes of interpreting segments of EU law, under the note that ECHR has already become part of EU law. To this purpose, the chapter looks at the extent to which the EU Treaties’ limitations on external tribunals’ jurisdiction should be interpreted, and shows ways which may reconcile it with ECHR provisions on inter-party jurisdiction of the Strasbourg Court. Mox Plant and Ireland v. UK are used and systematically examined against the inter-party mechanism and mechanics provided for by the Accession Agreement, with the intention of testing the applicability, integrity and functionality of its application with EU as one of the parties. Careful examinations of how the EU Treaties may become accommodated to the DAA’s inter-party complaint procedures are provided, whereas several consensual arguments have been laid down to make certain that the inter-party procedure may be invoked in the EU context as well however several safeguards need be introduced to ensure the EU law autonomy in this regard. The issue of abstract control of EU law under the inter-party complaint mechanism is also considered in the light of EU law autonomy sensitivity. Briefly, the chapter also covers the possibility for CFSP measures to become attacked before the Strasbourg Court, the latter being a first-instance court for such branch of EU law. The chapter concludes by arguing that the inter-party mechanism under the DAA and ECHR may allow space for reconciliation with the EU law, with EU being a party that may file and become attacked under this mechanism before the Strasbourg Court (certainly EU law autonomy questions implicitly raised there as well).