The Use of ECTHR Case Law by the CJEU after Lisbon: The View of the Luxembourg Insiders

Abstract

This article examines how and why the CJEU examines and cites the case law of the ECtHR after the entry into force of the Charter of Fundamental Rights in 2009. The CJEU’s practice will be sketched on the basis of 20 interviews with judges, referendaires and Advocates General at the CJEU. It will be shown that the CJEU has examined and cited the Strasbourg case law less frequently and extensively. Several reasons will be given for this, primarily on the basis of the observations of the interviewees as to their readiness to cite the Strasbourg case-law. This includes an awareness that both courts are different as well as strategic reasons related to the wish to develop an autonomous interpretation of the Charter. These two considerations are also implicit in Opinion 2/13 where the CJEU found that the EU accession agreement to the ECHR was not compatible with the EU treaties.