The Court of Justice of the European Union and the Protection of Fundamental Rights. How will the EU's Accession to the ECHR Influence the Development of EU Fundamental Rights Law?

Abstract

This paper explores how the forthcoming accession of the European Union (EU) to the European Convention on Human Rights (ECHR) will influence the development of EU fundamental rights law. After accession, the ECHR will become part of EU law. Equally, the acts and omission of the EU institutions may be challenged before the European Court of Human Rights (ECtHR) for alleged human rights violations. This paper essentially asks how the Court of Justice of the European Union will accommodate these important developments in EU law. It is suggested that the effects of accession can be foreshadowed by the case law on the Charter of Fundamental Rights of the European Union (the Charter) and the doctrine of primacy respectively. Accordingly, this paper argues that after accession, the CJEU should systematically start referring to the ECHR and the case law of the ECtHR. Furthermore, in order to maintain the doctrine of primacy the CJEU ought to embrace the principle of subsidiarity and value its judicial dialogue with the ECtHR.