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EU and ECHR: Conflict or Harmony?: Editorial

This document discusses the relationship between the EU and the European Convention on Human Rights (ECHR) as the EU is set to accede to the ECHR. It notes that while the ECJ discovered fundamental rights in the 1960s, the Lisbon Treaty more deeply enshrines human rights and mandates EU accession to the ECHR. This raises questions about how the two legal orders and courts will interact. While the ECJ and ECtHR often address similar issues, their approaches sometimes differ due to the EU's economic focus versus the ECHR's human rights focus. The boundaries between rights protected in different legal frameworks are also blurring as the courts increasingly note each other's rulings. However, open questions remain

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73 views2 pages

EU and ECHR: Conflict or Harmony?: Editorial

This document discusses the relationship between the EU and the European Convention on Human Rights (ECHR) as the EU is set to accede to the ECHR. It notes that while the ECJ discovered fundamental rights in the 1960s, the Lisbon Treaty more deeply enshrines human rights and mandates EU accession to the ECHR. This raises questions about how the two legal orders and courts will interact. While the ECJ and ECtHR often address similar issues, their approaches sometimes differ due to the EU's economic focus versus the ECHR's human rights focus. The boundaries between rights protected in different legal frameworks are also blurring as the courts increasingly note each other's rulings. However, open questions remain

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siddharth
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Editorial

EU and ECHR: Conflict or Harmony?

Sybe A. de Vries*

With the upcoming accession of the European Union to the European Convention on the Protection of
Human Rights and Fundamental Freedoms (ECHR) a new and possibly final stage in the remarkable
development of fundamental rights in EU law has begun. According to the joint communication from
Presidents Costa (the European Court of Human Rights, ECtHR) and Skouris (the Court of Justice of
the European Union, ECJ) ‘[t]he 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.’
Although fundamental rights had already been discovered and recognized by the ECJ as general
principles of Community law as long ago as the 1960s with cases like Stauder and International
Handelsgesellschaft,1 it is the Lisbon Treaty that brings the expansion of the protection of fundamental
rights at the level of the European Union to a climax. First, human rights are now more deeply enshrined
in the Treaty as basic and foundational values of the EU. Second, Article 6(2) TEU provides for the
accession of the EU to the ECHR; and third, the Charter of Fundamental Rights and Freedoms attached
to the Lisbon Treaty has been given binding status, according to Article 6(3) TEU.
This new constitutional setting for fundamental rights protection in Europe raises important
questions on the relationship between the EU legal order and its system of fundamental rights protection,
in particular the EU Charter of Fundamental Rights, and the legal order of the ECHR; and on the
relationship between the two courts, and how the accession of the EU to the ECHR is likely to affect the
rather complex relationship between these two institutions. This special section within the January 2013
issue of the Utrecht Law Review seeks to address these intriguing questions in the areas of social security,
sex discrimination, migration law, EU free movement law and the rights to strike and collective action.
A comparison between these different legal areas reveals that, although the questions that are dealt with
by the ECtHR and the ECJ are often very similar, the approach of the two courts may still differ to
a considerable extent. This can be explained, at least in part, by the economic background of the EU
compared to the human rights background of the ECHR. But the Court of Justice’s mandate is clearly
broader in that the European Union has meanwhile transcended the stage of market integration. As the
contribution by Burri shows, in the field of sex discrimination, the ECJ has been able to develop a more
elaborated concept of discrimination, thereby helped by the EU legislature, which has adopted specific

* Dr. Sybe A. de Vries is Associate Professor of European Law at the Europa Institute, Utrecht University School of Law, Utrecht (the
Netherlands), and Jean Monnet Chair in EU Single Market Law and Fundamental Rights, email: S.A.deVries@uu.nl.
1 Case 29/69, Erich Stauder v City of Ulm – Socialamt, [1969] ECR 419; Case 11/70, Internationale Handelsgesellschaft mbH v Einfuhr- und
Vorratstelle für Getreide und Futtermittel, [1970] ECR 1125.

http://www.utrechtlawreview.org | Volume 9, Issue 1 (January) 2013 | urn:nbn:nl:ui:10-1-112918 |

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Sybe A. de Vries

directives, which, in combination with the Court’s case law, offer EU citizens in certain cases better
protection than under the Convention.
By contrast, Veldman argues in her contribution that the fundamental rights to strike and to take
collective action have been more enhanced by the ECtHR than by the ECJ, the latter also being engaged
in protecting the integrity of the internal market and the four fundamental economic freedoms, which
still lie at the heart of the EU legal system and which may conflict with fundamental social rights.
In a similar vein, the different approaches of the ECJ and ECtHR in respect of the principle of non-
discrimination in the treatment of third country nationals in social security cases, which are discussed by
Pennings, can be explained by the typically distinct characteristics of the two legal orders.
Whether these diverging interpretations may eventually lead to clashes between the ECJ and the
ECtHR once the EU has become a member of the ECHR remains to be seen. There is in fact a growing
tendency to take note of each other’s judgments, for instance in the field of migration law as Brouwer
illustrates in her contribution. In the field of the internal market, however, the case law of the ECJ shows that
where fundamental rights come into conflict with the economic Treaty freedoms, the economic freedoms
may sometimes prevail over fundamental rights, which leads De Boer to question the fundamentality of
the EU Treaty freedoms. Based on Rawls’ political philosophy, he comes to the conclusion that only
where the Treaty freedoms protect equal opportunity, should they be seen as fundamental rights. But in
some cases the ECJ manages to employ a balancing exercise without subordinating fundamental rights
to economic freedoms, as De Vries makes clear in his contribution. In other words, fundamental rights
can be prioritized, even within the context of the EU Single Market.
Consequently, it appears that the two distinct legal orders have already become increasingly
intertwined and that the boundaries between fundamental rights protected in national constitutions,
the EU Charter and the ECHR are increasingly blurred. But questions remain as to the interpretation
of fundamental rights under the ECHR and the EU Charter, the complex and complicated relationship
between the ECtHR and the ECJ – to what extent can clashes between these two courts be avoided? –
and ultimately the impact of the ECHR on EU and national law. Meanwhile the negotiations on the
forthcoming accession of the EU to the ECHR are ‘in full swing’. The many uncertainties connected to
the relationship between the two legal orders are dealt with in several contributions to this journal. They
stimulate the debate and clarify the issues that merit further research. One thing is clear: Fundamental
rights in Europe need to be adjudicated in a ‘multi-layered’ or pluralist fashion and can no longer – also
for the EU itself – be considered as a mere afterthought.

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