1

1. ECHR and ECJ after Accession

As I have indicated in the introduction, the Luxembourg court will be considered as a

domestic court of one of the Contracting Parties over which the ECHR will exercise external
control. In the majority of cases the external control will be exercised in the framework of
individual applications to the ECHR pursuant to Article 34 of the Convention. I will therefore
not discuss the inter-State disputes under Article 33, because I want to focus more on the
changes in the European judicial review from the perspective of an individual. When the EU
accedes to the Convention, the ECHR will be able to review its acts directly (as opposed to
indirect review which has been carried out in Strasbourg so far).
The CJEU has jurisdiction to review legality of EU acts listed in Article 263 TFEU.
Grounds for review of legality will indeed include the Convention which will form an integral
part of European law1. Furthermore, the ECJ will have jurisdiction to assess compatibility
with the Convention when Member States act within the scope of application of EU law2.
Member States act within the scope of application of EU law when they:
⋅ apply provisions of EU legislation based on protection for human rights, or
⋅ act as “agents” implementing or enforcing EU measures, or
⋅ derogate from measures of EU law3.
The ECJ is obliged to determine whether such activities are compatible with the Convention.
This means that the ECJ should be involved in review of compatibility of such Member
States’ activities in the framework of preliminary rulings proceedings4.
After the accession it is most likely that within the scope of application of European
law, the Convention might be violated in the following situations:
1. National court will refer to the ECJ for a preliminary ruling on an interpretation of
a Member States’ activity (as described in the previous paragraph) and the
application of such a ruling will result in a violation of the Convention
(Carpenter),

1
I do not know whether it will bring something new to European law, because the ECJ held many times that the
Convention constitutes general principles of the Union’s law.
2
C-12/86 Demirel v Stadt Schwaebisch Gmund [1987] ECR 3719, § 28.
3
The various situations in which fundamental rights (including the Convention) have been held to bind Member
States are described in Craig, P.; de Búrca, G. EU Law: Text, Cases and Materials. Oxford University Press :
New York, 2008, pages 395-400.
4
Which indeed is nothing new, because the review of legality on grounds of general principles of human rights
has been carried out by the ECJ many times before.
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2. EU institution will adopt an act of secondary law that itself violates the
Convention and the ECJ will not declare the incompatibility of such a measure
with the Convention
a. In preliminary rulings proceedings5 (Bosphorus),
b. In annulment proceedings related to
i. challenges to legislation (Kadi),
ii. challenges to administrative acts (Hoechst),
3. The ECJ itself will violate the Convention by its own conduct (Edesa).
I chose to demonstrate the first category of cases on Carpenter6. UK wanted to deport
Mrs. Carpenter (a woman from Philippines) who had married to a British citizen. The ECJ
ruled that a removal of a person from a country where close members of his family are living
would amount to an infringement of the right to respect for family life under Article 8 of the
Convention, because the measure in question would not meet requirements of proportionality.
Despite the fact that the ECJ found a solution compatible with the Convention, one could
argue that Mrs. Carpenter could have been deported if the ECJ did not find the violation of
Article 8 of the Convention. She could have then claimed to be a victim of violation of her
fundamental rights (Article 34 of the Convention). The problem is who would be responsible
for such a violation. It would be a national measure (a decision to deport her, issued by the
Secretary of State for the Home Department) that violated Mrs. Carpenter’s rights, but at the
same time, it would be the judgment from Luxembourg that did not reveal the incompatibility
of such a measure with the Convention7. I would suggest Mrs. Carpenter taking action against
both the UK and the EU, but the ECHR would finally have to resolve who is responsible for
the infringement.
In order to assess this situation, I first need to clarify my view of the future position of
the Convention in the European legal order. The Convention will be a very specific agreement
which cannot be simply classified. Article 6 (2) TEU is, in my opinion, a competence clause,
but it does not confer on the EU (either internal or external) competence per se to enact rules
on human rights or to conclude international convention in the field of human rights8 (with the

5
Either because the preliminary question concerning the validity of the measure is not put forward by national
court or is put forward, but the ECJ does not find the incompatibility.
6
Case C-60/00 Carpenter v. Home Secretary [2002] ECR I-6279.
7
UK courts could not depart from such a ruling given by the ECJ, because they are bound to follow it.
8
Even the ECJ held in Opinion 2/94 that “no Treaty provision confers on the Community institutions any
general power to enact rules on human rights or to conclude international conventions in this field“ (Opinion
2/94 Accession of the Community to the European Convention on Human Rights and Fundamental Freedoms
[1996] ECR I-1759, § 27). Even the Charter of Fundamental Rights has limited scope [Article 52 (1)] and
therefore does not, in my opinion, extend the competence of the EU in the area of human rights.
 3

exception of the Convention). I would therefore classify it as a sui generis international

agreement. Its sui generis nature, however, will not prevent it from being considered as an
integral part of European law9. This implies that all provisions of the Convention will be
integrated into European legal order and they will also have to be classified as directly
effective10. The accession, on the other hand, will not, in my opinion, terminate the human-
rights-standard ground for review of legality applied by the ECJ hitherto. The ECJ will
therefore have exclusive jurisdiction to interpret the Convention, but only when Member
States would be acting within the scope of EU law. This further implies that once the scope of
European law will change, the exclusive jurisdiction of the ECJ to interpret the Convention
will expand. If we accept that the ECJ will assert its exclusive jurisdiction to interpret the
Convention (when Member States act within the scope of EU law), it should also shift the
responsibility on the EU for the judgment of its court.
I would therefore suggest that in such cases as “upside-down” Carpenter, it should be
the EU who would be responsible for the alleged violation. This would, in my opinion, only
apply if national courts complied with their obligation to refer for a preliminary ruling. If they
did not refer for a preliminary ruling it should be the Member State who should be
responsible11.
The second category of cases deals with the issue of a violation of the Convention by
an act of the EU (secondary law). It can be subdivided into more divisions as I have indicated
in the aforementioned scheme.
The ECJ might violate the Convention in the preliminary rulings procedure where an
act is challenged indirectly - as was the case in Bosphorus12. The ECHR might be then asked
to adjudicate on a national measure (decision of national court that implemented the ECJ’s
judgment). Based on my arguments described above, I would use argument a fortiori to
reason that the EU should be held responsible for the violation in this case, because the
violation in question is stemming directly from EU’s secondary law. We can indeed question

9
Case C-181/73 Haegeman v. Belgian State [1974] ECR 449.
10
The provisions will have probably only vertical direct effect, because the ECHR so far has been reluctant to
treat the Convention as conferring rights in horizontal legal relations in which the Convention has merely
indirect effect.
11
However, Member States would not be, in my opinion, liable only for the violation of a fundamental right
associated with the claim per se (in this case of Article 8), but also for the violation of the positive obligation of
Member States’ national courts to refer for a preliminary ruling under European law (violation of Article 6 of the
Convention). If the ECJ asserts to have exclusive jurisdiction to interpret the Convention, failure to refer for a
preliminary ruling (in a case with human rights implications) would have to be treated as a violation of a
fundamental right under Article 6 of the Convention. Even today, some constitutional courts, e.g., in Austria,
consider reference for a preliminary ruling as a right under Article 6 of the Convention.
12
Case C-84/95 Bosphorus v. Minister for Transport [1996] ECR I-03953, Judgment of the ECJ of 30 July 1996.
 4

whether the ECHR would still apply its presumption of compatibility, or whether it would be
more willing to review the legality of the impugned act. The “system of silent cooperation and
mutual respect” (as described above) has been, in my opinion, established in order not to
engage in controversial tensions between jurisdictions of both courts. It appears that once the
ECHR acquires the supreme position, it will be less willing to support this system. However,
the problem of the ECHR is that it is overwhelmed by applications and therefore the
Bosphorus presumption could be still applied (and even be extended) subject to the case-by-
case possibility of its rebuttal.
It might also happen that the Convention will be violated by an act whose
incompatibility with the Convention will not be revealed in direct actions for annulment under
Article 263 TFEU. Challenges can be subdivided into challenges to legislation (such as
regulations) and administrative acts (such as decisions). Due to the complexity of issues
raised by Kadi13, I will just use it as an example of the ECJ’s decision related to a challenge to
a regulation with fundamental rights implications. Another and clearer example of the
violation can be demonstrated on Hoechst14 in which the applicant company challenged
certain decisions of the Commission ordering investigation in its premises. Hoechst argued
that such investigations carried out under Article 14 of Regulation No. 17 violated Article 8 of
the Convention. The ECJ did not find the incompatibility in this case, but in the future, the
ECHR held in Niemietz15 that the right to respect to private life extends under Article 8 also to
business premises (as was the case in Hoechst). This means that the EU might adopt an
incompatible measure which might not be annulled by the CJEU in proceedings under Article
263 TFEU. I believe that in such cases, the Party responsible for the violation would clearly
be the EU.
Speaking of annulment proceedings, one should not forget to highlight the restrictive
approach of the ECJ to locus standi for non-privileged applicants. The new wording of Article
263 (4) TFEU seems to suggest that a non-privileged applicant will not have to prove his or
her individual concern in challenges to “regulatory acts”. This term remains unclear, but it
should probably include regulations (at least most of them). The Plaumann test16, however,
must still be met in challenges to decisions addressed to a third party. In his famous

13
Case T-315/01 Yassin Abdullah Kadi v. Council of the European Union and Commission of the European
Communities, and Joined Cases C-402/05 P and C-415/05 P Yassin Abdullah Kadi and Al Barakaat
International Foundation v. Council of the European Union and Commission of the European Communities.
14
Cases 46/87 and 227/88 Hoechst AG. v. Commission [1989] ECR 2859.
15
Niemietz v. Germany, Judgment of the ECHR of 16 December 1992, App. No. 13710/88.
16
Case 25/62 Plaumann & Co. v. Commission [1963] ECR 95.
 5

assessment of standing for non-privileged applicants, Advocate General Jacobs17 objected

against the ECJ’s assumption that Article 267 TFEU provides for a full and effective judicial
protection. In the field of the Convention, we can question whether certain denial-of-justice
objections raised by AG Jacobs would not amount to the violation of Article 6 of the
Convention. And since AG Jacobs in certain cases considered European judicial protection as
ineffective18, I do not exclude the possibility that the ECHR might come to a similar
conclusion in the future. Such a finding in Strasbourg (about ineffectiveness of European
judicial protection) might then have serious consequences for the ECJ’s exclusive role in the
interpretation of European law. According to the Strasbourg case-law, an individual applicant
does not have to exhaust domestic remedies (in this case European “direct or indirect
challenges to legality”) if they are deemed unavailable or ineffective. It might then happen
than when an act of secondary European law violates human rights of the applicant, he or she
can lodge a complaint directly in Strasbourg without needing to have recourse to European
courts. This exclusion of the ECJ (or European courts in general) from its exclusive
jurisdiction under the Treaties would definitely diminish its exclusivity in the interpretation of
European law.
The third (and probably last) category of cases where the Convention might be
violated can be elucidated on Edesa19. In this case, it was the ECJ which violated the
Convention and therefore if such a situation arises, the responsibility should be within the EU.
National courts that are bound by ECJ’s preliminary rulings cannot autonomously decide not
to apply them, because such a rejection of application might imply an infringement of
European law. It therefore follows that the respondent Party in the application should be the
EU.

Conclusion
In the previous sections I tried to assess judicial review of European law in the context
of the Convention carried out by the ECJ and ECHR. In the absence of accession Strasbourg
can review legality of European acts only indirectly and because the EU is not a party to the

17
Case C-50/00 P Unión de Pequeños Agricultores v. Council [2002] ECR I-6677, § 102.
18
AG Jacobs, for instance, states that “there may be a denial of justice in cases where it is difficult or impossible
for an applicant to challenge a general measure indirectly (e.g. where there are no challengeable implementing
measures or where the applicant would have to break the law in order to be able to challenge ensuing sanctions)“
(Case C-50/00 P Unión de Pequeños Agricultores v. Council [2002] ECR I-6677, § 102). See similar conclusions
made by the ECHR in Posti and Rahko v. Finnland, Judgment of the ECHR of 24 September 2002, App. No.
27824/95, § 64.
19
FN 18 above.
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Convention, the responsibility for potential violations lies with the Member States. This
scenario will probably change once the EU accedes to the Convention and the ECHR will
review legality of European acts directly. Being a party to the Convention will also enable the
EU to be held liable for violations of fundamental rights in the EU. Such an external control
exercised by the ECHR will also diminish so far exclusive jurisdiction of the ECJ to interpret
European law. When a case will have human rights implications, Strasbourg will have the
final say.
I have also showed that there is a risk of direct access to the ECHR if the system of
judicial review and its remedies will be qualified as ineffective. This is very interesting,
because in principle, the EU has so far insisted on national procedural autonomy of national
courts when they are dealing with issues of European law20. If, however, this national
procedural autonomy failed to provide effective protection, the ECJ did not hesitate to
“introduce” new remedies21. On the other hand, in such cases, the ECJ had the opportunity to
balance the principle of national procedural autonomy and the effectiveness principle. When
the EU accedes to the Convention, there will be, in my opinion, stronger pressure on the ECJ
to guarantee that the European judicial protection and the possibility to direct and indirect
challenges to European acts will be available and effective. Such pressure might result in a
more “activist” approach of the ECJ towards national courts that might be substantiated by the
duty of cooperation in EU external relations. Accession to the EU might then have not only
external implications, but it might be reflected also internally. If something like that happens,
it will again bring about passionate discussions about the role of the EU and the principle of
conferred powers. It follows that the EU’s initiatives towards the accession might therefore
lead not only to external tensions between Strasbourg and Luxembourg, but also to internal
tensions between the ECJ and national courts.
However, as an individual, I agree the accession of the EU to the Convention, because
an increasing number of judicial-review opportunities might contribute to the principles of
justice and peace in Europe that are certainly important European ideals for me.

20
Case 33/76 Rewe-Zentralfinanz eG and Rewe-Zentral AG v. Landwirtschaftskammer für Saarland [1976]
ECR 1989.
21
Case C-213/89 R. v. Secretary of State for Transport, ex parte Factortame Ltd. and Others [1990] ECR I-2433.