The Judicial Dialogue between the European Court of ... - FRAME

The Judicial Dialogue between the European Court of Justice and the European Court of Human Rights Or how to remain good neighbours after the Opinion 2/13 Brussels, 27 March 2017- FRAME

Dean Spielmann Judge at the General Court of the European Union Former President of the European Court of Human Rights

Ladies and Gentlemen,

It is a great pleasure for me to give a lecture here today on the relationship between the European Court of Human Rights (ECtHR) and the Court of Justice of the European Union (CJUE). I would like to thank the Frame project for the organisation of this event and all of you for the warmth of your welcome.

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When addressing the issue of judicial dialogue between the European Court of Human Rights and the Court of Justice of the European Union, it is not an arduous task to determine the common features between the two jurisdictions. Both courts are supranational or international and compulsory jurisdictions. The external judicial control over the respective Member States was the reason of their creation. Moreover, both courts have been set up to ensure respect for the law of the treaties establishing them. At the same time, one should also look at the crucial differences between the two judicial institutions. For it is through the acknowledgement of the

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respective dissimilarities in nature, mission and interrelationship with national courts that it is possible to identify the boundaries and points of resistance of the two judicial systems in so far as the convergence of their respective case laws is concerned.

Thus, it is useful to remind that the two courts were invested in the beginning with distinctive missions: the Strasbourg Court would guarantee the respect of the rights enshrined in the Convention: “to ensure the observance of the engagements undertaken by the High Contracting Parties in the Convention and the Protocols thereto”, as it is provided by Article 19 of the Convention. Pursuant to Article 32 of the Convention, “the jurisdiction of the Court shall extend to all matters concerning the interpretation and the application of the Convention and the Protocols (…)”. The Luxembourg Court is not and has never been a human rights court. Its task is to ensure, in accordance with article 19 (1) of the TEU, that the lex terrae is observed in the interpretation and the application of the Treaties.

A crucial difference between the two courts lies in their respective relationship with the Member States, which is reflected on the nature of their judicial mission. In particular, the Strasbourg Court, in accordance with article 53 of the Convention, aims at establishing a minimum level of human rights protection throughout all fortyseven Member States. The Convention does not aspire to harmonise the various systems of fundamental right’s protection developed at national level, but at securing a common basis.

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Judgments delivered by the Strasbourg Court finding a violation of one or several rights guaranteed by the Convention, impose on respondent states a legal obligation to adopt individual or general measures to put an end to the impugned situation. Supervision of Member States as regards their compliance with the obligations stemming from the Convention is subsidiary in character. This is specifically reflected in the principle of exhaustion of domestic remedies, which is a prerequisite for filing a case with the ECtHR. That principle means that the Strasbourg Court will not intervene before all remedies have been used by the applicant at national level, including the constitutional courts where appropriate, which must have examined the fundamental rights’ questions brought before the ECtHR.

Turning now to the EU, the latter was established as an economic entity, and as such it offered individuals and undertakings economic rights, without providing for an explicit and comprehensive regime for human rights protection. Thus, for the CJUE, the protection of fundamental rights in EU law has always been regarded with reference to the attainment of the objectives of the Treaties. I call that the prointegratione approach to human rights. As it has been stated by Siofra O’Leary, judge at the ECtHR, unlike the Strasbourg Court, the Luxembourg Court is the ultimate interpreter of a separate body of law, which is governed by the principle of conferral (“principe d’attribution”). The law of European Union has primacy over the domestic law of Member States and it enjoys direct effect. Thus, the Luxembourg Court plays the role of a general supreme court of the European Union whose main task is, mainly through the preliminary ruling procedure, to guarantee the primacy of EU law. The raison d’être of the EU judiciary is not to ensure a minimum protection

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of fundamental rights in Europe but uniformity of EU law based on the principle of equality of Member States. Hence, the importance of the principle of mutual trust in EU law. In other words, the Luxembourg Court ensures the level playing field between all Member States. Recent examples of the CJUE case law, including Melloni and, most prominently, Opinion 2/13 demonstrate that protection of fundamental rights is pursued to the extent and only to the extent that it does not undermine the unity and effectiveness of EU law.

Nonetheless, an inherent characteristic of human rights law is its ability to permeate the respective frontiers of national or transnational legal orders by establishing common principles and standards of interpretation. Delving into the reasons lying behind this phenomenon would probably require a separate lecture. For the time being, I would just suggest that the permeability of European legal orders by human rights principles is mainly due to their essential nature and, insofar as the European legal landscape is concerned, to the complexities of a multi-level interplay between the EU, the Convention and the domestic legal orders.

The impervious character of the ECHR and the EU legal environments at their inception, which, as it has already been mentioned, derives essentially from the content of the treaties which instituted them, was however of short duration. This was mainly due to the gradual permeability of Community law by fundamental rights’ principles as well as the dual membership of the Member States of the Communities in the systems of the European Community and the Convention.

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Two milestones have marked the judicial dialogue between the Strasbourg and Luxembourg Courts: the first one is the entry into force of the Treaty of Lisbon in December 2009, whereby the Charter of fundamental rights became legally binding on the European Union. The second one is the delivery of Opinion 2/13 in December 2014 by the CJEU which held that the accession of the EU to the ECHR on the basis of the draft agreement negotiated by the Council of Europe and the EU would be incompatible with art. 6(2) and Protocol No. 8 of the TEU.

In my presentation, I will focus on the evolution of the interrelationship between the Strasbourg and Luxembourg courts before and after the entry into force of the Treaty of Lisbon. Then, I will touch upon the Opinion 2/13 before I examine whether mutual trust between the two highest European courts has been re-established after the delivery of the Opinion. I will finally address the inevitable question whether, given the current state of dialogue between CJUE and ECtHR, accession of EU to the Convention is still pertinent and necessary. The story will be told mainly from the point of view of the Luxembourg Court. Nonetheless, where necessary, the focus will shift to Strasbourg, especially when referring to seminal judgments as Bosphorus and Avotiņš.

A. The long era before Lisbon Interactions between the judicial system of the Convention and the system of the European Union started early on in the mid-seventies. One could ask “why did the then Court of Justice of the European Communities refer to the European Convention of Human Rights, given that the Founding Treaties of the European Union were characterized by their purely economic content”? The answer is that the 5

general principles of EU law mirror the legal traditions of Member States. There has been a “mutual cross-fertilization”, as Professor Jan Wouters and others have emphasized. By referring to fundamental rights in its case law, the CJUE established a bridge between the then newly founded Community legal order, on the one hand, and the already existing national constitutional systems, and international treaties ratified by its Member States, especially the ECHR, on the other hand. The grounding of the protection of human rights in general principles of EC law rather than in national or international law assisted concomitantly the ECJ in asserting its own institutional autonomy vis-à-vis national courts and in reinforcing the normative supremacy of Community law.

In the 1970 case of Internationale Handelsgesellschaft the CJUE proclaimed that fundamental rights, as general principles of Community law, are « inspired by the constitutional traditions common

to

the Member States », simultaneously

underlining that their protection « must be ensured within the framework of the structure and objectives of the Community ». In 1974 in Nold, the Court added that, apart from national constitutional traditions, Community fundamental rights could be based on international agreements to which the Member States are contracting parties. The Luxembourg Court explicitly referred to the ECHR the following year in Rutili.

The ECtHR made for the first time an explicit reference to the case law of the CJCE in the famous Marckx v. Belgium case in 1979. The first citation by the CJCE of the ECtHR’s case law came in 1996 (CJCE, P v S and Cornway County Council, 30.4.1996). In 2002, the CJCE concluded that it “applies the Convention as if its

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provisions formed an integral part of Community law” and comparably, in 2006 that it applies “ECHR standards diligently and conscientiously”. In the years before the entry into force of the Lisbon Treaty, references to the ECtHR’s case law became a routine.

In this way, in the pre-Charter era the awareness by the CJUE of the development of human rights’ case law by the ECtHR allowed the former to recognise a number of fundamental rights as general principles of EU law. Examples include the right to protection of human dignity and personal integrity, the right to freedom of expression equality before the law, the principles of adversarial administrative proceedings and “good administration”. Despite these fortunate developments, by recognising fundamental rights on a case-by-case basis, the ECJ has however been unable to develop a comprehensive system of fundamental rights protection covering all areas of Community law and, thereafter, EU action. Furthermore, due to the lack of reference to specific fundamental rights in EU legislation, EU citizens could not know with certainty whether their rights had been violated.

On its part, the ECHR was referring less frequently to the case law of the CJUE. That was not unexpected. In fact, the citation by the ECHR of the judgments of the CJEU was not stemming mainly from a need to legitimize its own case law vis-à-vis the Contracting States. In the case of the ECHR, it was rather a matter of proving that there was a consensus at European level which could justify either a reversal of case law or an evolutionary interpretation of a right guaranteed by the Convention. It was only in very specific cases where the ECtHR had been called upon to rule indirectly on the compatibility of EU law with the Convention or on situations falling

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within the scope of EU law. In these cases, citation of the case law of the CJEU was transformed into an imposed choice, as the ECtHR’s aim was to demonstrate approval or deference to the CJEU when adjudicating cases involving the application of EU law.

The continuing cross-fertilisation between the Strasbourg and Luxembourg case law and the gradual impingement of European Union on fields of human freedom and welfare, led the first one to clarify its position towards the standard of fundamental rights protection offered by EU law. In its seminal Bosphorus judgment, the Grand Chamber of the ECtHR addressed the issue of the responsibility of Member States in the context of measures taken by them in order to abide by legal obligations towards international organisations to the former have transferred sovereign powers.

The Strasbourg Court formulated the presumption that a state has not failed to fulfil its duties under the ECHR when implementing legal obligations flowing form the state’s membership of an international organisation, provided that two conditions have been fulfilled. First, the presumption only applies if the state has no discretion on how to implement these obligations. Second, the relevant international organisation must protect fundamental rights in a manner, which is equivalent to that for which the ECHR provides. This is the famous presumption of “equivalent protection” provided by the Bosphorus judgment. It is important to mention that equivalent does not mean identical but comparable. Furthermore, the protection must be equivalent both in respect of the guarantees of substantive fundamental rights and the machinery for supervising fundamental rights enjoyment. The Court

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stressed that in cases where fundamental rights protection is manifestly deficient, the presumption can be rebutted.

Importantly, in Bosphorus the ECtHR established that the presumption applied to the EU. The Court attached considerable importance to the Charter, which had not yet become binding, and the CJEU’s case law, which included extensive references to the ECtHR’s jurisprudence. As regards the procedural aspect of the “equivalent protection” presumption, the Michaud case is an essential contribution to the Bosphorus doctrine: the ECtHR held that the presumption of equivalent protection does not apply when the “full potential of the relevant international machinery for supervising fundamental rights has not been deployed”.

In general, with Bosphorus the ECtHR manifested its intention to avoid conflict with the Luxembourg court. As it has been argued, the Bosphorus doctrine seems to be “suggestive of a desired relationship of comity, or even cooperation”.

B. Lisbon: new dynamics due to the binding force of the Charter The entry into force of the Treaty of Lisbon placed the Charter of Fundamental Rights at the heart of the EU legal system as the Charter achieved “the same legal value as the Treaties”. The legal binding force of the Charter triggered further interaction between ECJ and ECtHR and the relationship between the two courts gained new dynamism with regard to the mutual judicial reliance and dialogue.

On one hand, the Charter also specified and formalized the interface between the two systems, a process which can be traced back to the Preamble to the Single 9

European Act (1987) and the Amsterdam Treaty (1997).

That did not come

surprisingly: the entry into force of the Charter entailed the addition of a new supreme instrument in the system of protection of fundamental rights on European level. Therefore, there was an increased need to systematize the concurring clauses of protection of human rights emanating from different sources and levels. As the Union endowed itself with its own catalogue of fundamental rights and since most of them correspond to rights also guaranteed by the ECHR, it was necessary to formally clarify the terms of interaction between the Strasbourg and the Luxembourg regime.

Thus, Article 52(3) of the Charter constitutes the interpretative bridge of the two regimes. It states that, without prejudice to a more extensive protection, the meaning and scope of those rights shall be the same as those laid down by the ECHR. In addition, the official 'Explanations' to the Charter provide a list of the articles having the same meaning as the corresponding articles of the ECHR, but where the scope is wider. Moreover, Article 53 reinforces the interpretive bridge between the two systems by providing that nothing in the Charter shall be interpreted as “restricting or adversely affecting human rights as recognized”, inter alia, by “...international agreements to which the Union or all the Member States are party, including the European Convention for the Protection of Human Rights and Fundamental Freedoms..”.

On the other hand, in the wake of the Treaty of Lisbon, a tendency of the CJUE to use the Charter as its principal point of reference can be identified in its case law. This trend was clearly made explicit in 2010, in DEB Deutsche Energiehandels- und

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Beratungsgesellschaft mbH v. Germany, a case on access to legal aid referred by a German court with reference to the general principle of effective judicial protection but resolved by the Court with reference to Article 47 of the Charter. In the same vein, in Samba Diouf, a case which concerned the right of effective judicial protection in asylum procedures, the Court did not make any reference to the ECHR or the case law of the ECtHR. In Akzo Nobel, even though the Opinion of Advocate General Kokott makes extensive references to the relevant ECtHR’s case-law on the legal professional privilege given to lawyers, the judgment of the Court did not expressly consider the case law of the ECtHR or even mention Article 52(3).

On its part, the ECtHR started to refer to the CJUE’s case law more frequently when the Charter became binding. This is not surprising, if we look back at the initial reasons which prompted each Court to interact with the jurisprudence of the other. For the CJUE, it is a matter of legitimation of its status and of the autonomy of EU law towards national jurisdictions. For the ECtHR, referring to EU law offered a basis to show contemporary consensus and modernise the interpretation of the Convention. Hence, with the entry into force of the Charter, EU law became more relevant to the ECtHR, because, as it is often stressed in the latter’s case law, the ECHR “is a living instrument, to be interpreted in present-day conditions”.

C. The Opinion: EU law autonomy v. fundamental rights protection (?) It would not be an overstatement to argue that Opinion 2/13, handed down by the CJUE on December 18, 2014 was historic in so far as the interface between the two jurisdictions is concerned. The Luxembourg Court ruled that the draft agreement on 11

the EU accession to the ECHR was not compatible with the EU Treaties. Contrary to Advocate General Kokott’s conditional “yes”, the CJUE gave a clear unfavourable Opinion by objecting to almost every aspect of the draft accession agreement. The ECtHR’s reaction to Opinion 2/13 was one of disappointment, which mirrored the hopes that many had placed in the prospect of the EU acceding to the Convention in the not-too-distant future. The sentiment was widely shared among the many legal commentators who wrote about the subject in the weeks and months that followed the delivery of the Opinion, some of whom expressed it in forceful terms, such as “overkill”, “unmitigated disaster”, “une attitude intransigeante” and “une argumentation pléthorique”.

A point-by-point analysis of the Opinion is a subject on which others have dwelled. It is not the purpose of this lecture to repeat the arguments made by the CJUE. Instead, I will briefly concentrate on the insights the Opinion can give into the judicial dialogue between the CJEU and the ECtHR.

Opinion 2/13 takes a clear stance on the perennial question of the accommodation of an effective protection of fundamental rights in EU with the principle of autonomy of EU law. It states that the former can only be acceptable within the context of the latter. The CJUE held that “the autonomy enjoyed by EU law… requires that the interpretation of those fundamental rights be ensured within the framework of the structure and objectives of the EU”. We can trace here a clear link with the famous Kadi I judgment in which the CJEU described the EC Treaty as “an autonomous legal system which is not to be prejudiced by an international agreement”. In fact, what the Court makes clear in Opinion 2/13 is that if the EU were to be subjected to

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an external control by the ECtHR that should be done in conformity with the special characteristics and autonomy of the EU legal order.

Special importance is conferred in the Opinion upon the obligation of mutual trust between Member States. That principle requires, particularly with regard to the Area of Freedom Security and Justice (AFSJ), that Member States consider all other Member States to be complying with EU law and “particularly” with EU fundamental rights, save for “exceptional circumstances.” In the Opinion, the CJUE grants the principle of mutual trust constitutional status by referring to it as being of “fundamental importance in EU law”. What is interesting to underscore is that the Opinion reveals through the argument on mutual trust, a latent tension between Luxembourg and Strasbourg on the issue of fundamental rights protection in the AFSJ and, in particular, in cases dealing with the Dublin Regulation and the European Arrest Warrant. In fact, cases on asylum seekers and the European Arrest Warrant get to the crux of the matter which distinguishes the two Courts when coming to fundamental rights adjudication: The CJUE has to balance, on the one hand a system based on mutual trust and mutual recognition, with, on the other hand, fundamental rights concerns. By contrast, as it has already been stressed, the ECtHR’s unique objective is to guarantee a minimum standard of protection of fundamental rights.

In this respect, it is worth mentioning that, before the Opinion, in NS, the CJEU considered that the transfer of asylum seekers to the responsible Member State within the Dublin rules is based on the presumption of mutual trust. Nonetheless, the ECtHR’s MSS and Tarakhel judgments concerning the Dublin mechanism

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downplayed the importance of mutual trust within the CJEU system. According to the MSS judgment, when transferring an asylum seeker to a Member State, the sending Member State might violate Article 3 of the Convention if it knows or was supposed to know that systemic flaws in the asylum procedure and reception conditions in the former risk subjecting the individual to inhuman or degrading treatment. In Tarakhel, the ECtHR ruled that when the risk of inhuman or degrading treatment is established, the State needs to carry out a thorough and individualised examination irrespective of the source of the risk. Consequently, the Strasbourg Court decided in Tarakhel that the presumption of compliance should also be able to be rebutted if minimum accommodation conditions for families with children are not fulfilled in the transferral state. Thus, contrary to the CJEU’s standard of systemic failure, the Strasbourg Court requires an individual "real risk" analysis.

In the Opinion, the CJUE holds that the requirement of an individual risk analysis despite mutual trust is “liable to upset the underlying balance of the EU and undermine the autonomy of EU law”. It has been argued that the mutual trust objection in Opinion 2/13 could be seen as a backlash against MSS and Tarakhel. This might be right or wrong. In any case, the Opinion the CJUE makes clear that the accession of EU to the Convention could not affect the autonomy and effectiveness of EU law.

D. Avotiņš: « the empire strikes back » or a tale of good neighbours? After the Opinion 2/13 and the inevitable appearance of cracks in the two Courts’ relationship, one key question arose: would the ECtHR continue to apply the 14

Bosphorus doctrine to the EU? As it has been argued by Lize Glass and Jasper Krommendijk, three basic scenarios became possible. The Strasbourg Court would continue to implement the Bosphorus presumption as if nothing had happened. The ECtHR would decide to abandon it. Or, there could be an intermediate solution: the ECtHR would continue to apply the Bosphorus doctrine but in a more rigorous manner.

The long awaited Avotiņš v. Latvia judgment was handed down by the Grand Chamber of the Strasbourg Court on 26 May 2016. The Court confirmed the Bosphorus presumption on equivalent protection. Nonetheless, a careful reading of the judgment reveals that the Court took pains to send implicit but clear signals that the presumption should no longer be taken as granted and that it would be eager in the future to scrutinise carefully decisions of domestic courts implementing EU law.

Avotiņš concerned the enforcement in Latvia, pursuant Regulation 44/2001, of a judgment delivered in Cyprus concerning the repayment of a debt. The applicant was an investment consultant who had borrowed money from a Cypriot company. He complained, on the ground of Art. 34, para. 2, of the Regulation, that the Cypriot court had ordered him to repay his debt under a contract without summoning him properly and without guaranteeing his defence rights. The Latvian Supreme Court ultimately dismissed the appeal, stressing the fact that the applicant had failed to challenge the judgment before Cypriot courts.

In so far as the Bosphorus doctrine is concerned, the ECtHR observes that the applicant had refrained from requesting the Latvian Supreme Court to make a

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preliminary reference to the CJUE on the matter at issue. The absence of reference by the Latvian court was therefore “not a decisive” factor and, according to the Grand Chamber, the Bosphorus presumption applied. Nevertheless, the most important part of Avotiņš is the reference to the principle of “mutual trust” in EU law. While the ECtHR mentions that it remains “mindful of the importance” of mutual recognition mechanisms and mutual trust, it holds that those mechanisms must not infringe fundamental rights. Given the importance of paragraph 116 of the judgment, it is worthwhile to reproduce its relevant part in full:

“(...) where the courts of a State which is both a Contracting Party to the Convention and a Member State of the European Union are called upon to apply a mutual recognition mechanism established by EU law, they must give full effect to that mechanism where the protection of Convention rights cannot be considered manifestly deficient. However, if a serious and substantiated complaint is raised before them to the effect that the protection of a Convention right has been manifestly deficient and that this situation cannot be remedied by European Union law, they cannot refrain from examining that complaint on the sole ground that they are applying EU law.”

Therefore, Avotiņš offers a more nuanced reading of the equivalent protection principle and it is not a simple confirmation of the Bosphorus doctrine. More importantly, the judgment pinpoints the ECtHR’s intention to scrutinise EU measures based on mutual recognition and mutual trust according to the criterion of “individual risk” laid previously down in MSS and Tarakhel.

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Interestingly enough, less than two months before the delivery of Avotiņš, on 5 April 2016, the CJUE delivered its judgment in joined cases Aranyosi and Căldăraru. These cases bring important developments with regard to the interplay between the principles of mutual trust and recognition, on the one hand, and the protection of fundamental rights, on the other, in the context of the Area of Freedom, Security and Justice. The CJEU was confronted with two nearly identical references from the Higher Regional Court of Bremen. The German Court was principally concerned with the issue whether Article 1(3) of the Framework Decision on the European Arrest Warrant must be interpreted as meaning that a surrender for the purposes of prosecution or for executing criminal sanctions is inadmissible if serious indications exist that the conditions of detention in the issuing Member State infringe the fundamental rights of the requested person.

The CJEU emphasises the protection of the fundamental rights of the requested person by not only focusing on the systemic deficiencies of the detention conditions. It also takes into account the specifics of the concrete case. It can therefore be said that the Aranyosi and Căldăraru judgment might be seen as one of “reconciliation” between various competing values and interests.

The assessment of recent jurisprudential developments after the Opinion 2/13 shows that the Courts have managed to avoid open conflict. Furthermore, as Koen Lenaerts, the president of CJUE has recently stated, willingness on the part of the two Courts can be observed to do their respective homework against the backdrop of the legal shortcomings identified in Opinion 2/13 and find solutions not through diplomatic negotiation but through the respective convergence of their respective

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case laws. It is also important to stress that the two Courts continue after Opinion 2/13 to keep communication channels open and interact at bilateral meetings organised in Luxembourg and in Strasbourg. These meetings between judges of the European Court of Human Rights, the Court of Justice and the General Court, offer the opportunity to judges to discuss questions that are of concern to both courts.

Concluding remarks The question to be addressed given the current state of affairs between the Strasbourg and Luxembourg Court is whether accession is redundant. A temptation exists to remain satisfied with the current status quo, especially since Avotiņš has recently confirmed that the case law of the CJUE offers, in principle, an equivalent protection of fundamental rights to Strasbourg. It is true that accession would not be necessary solely for the sake of good cooperation between the two courts. Both courts follow closely each other’s case law and are willing more or less to make the necessary adjustments in order to avoid blatant discrepancies as regards the level and modalities of protection of fundamental rights.

Nonetheless, this does not mean that any prospect of accession should be abandoned. Firstly, from a political point of view, Article 6(2) of the Treaty on European Union requires the EU to accede to the ECHR while respecting the specificities of the Union described in Protocol 8. This obligation of the treatymakers must be respected.

Secondly, and again as Koen Lenaerts has pointed out, accession is imperative for the European Union because the latter is a domestic legal order, not state like, but a 18

self-referential legal order whose ultimate rule of recognition, to use the language of Herbert Lionel Adolphus Hart, are the Treaties and the Charter, which in their turn are rooted in the common constitutional traditions of the Member States and the ECHR. External review will always be an added value for EU, as it is in the case of a sovereign state. In fact, the existence of an independent external control will contribute to an improvement in the protection of fundamental rights within the European Union.

This is all the more true, if one takes into account the current architecture of fundamental rights’ protection mechanism in Europe. The European edifice of fundamental rights’ protection is not a pyramidal construction with a unique supreme court on top of it. It is a sophisticated “multi-level” protection model which involves three main actors: the national courts, the ECtHR and the CJUE. All three of them interact simultaneously over an overlapping legal space. As it has rightly been observed by Andreas Voßkuhle, the president of the Federal Constitutional Court of Germany, Europe’s judicial structures should be thought in terms not of “pyramid” but of a “mobile”, a kinetic sculpture which consists of an ensemble of balanced parts which are not revolving around their own axes, but are instead constantly engaged in a dialogue triggered by the movements of the other parts.

Willingness to listen, show respect and deference are always welcome but they are not sufficient in order to preserve the delicate balance within a multi-player judicial mechanism which presents a high pitched interconnectivity of all its components. A bottom-up assessment of the European system of fundamental rights’ protection shows that it is only through the accession that European citizens and national

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courts will be able to grasp with certainty the content and the level of protection of a fundamental right in a specific individual case.

It is almost a commonplace to say nowadays that we live in an age of disbelief. Many of the ideas and institutions that have underpinned western democracy since the early years after World War II are besieged. In the current political vacuum into which rush new, ambivalent, figures and ideas, EU’s accession to the Convention will enhance the authority and credibility both of the Luxembourg and Strasbourg courts. Nonetheless, in order to generate solutions and not create additional problems, the accession should take place in the right conditions with due respect to the specificity of EU, a very peculiar animal in the international legal landscape. At the end of the day, given that Europe is currently navigating through turbulent waters, important decisions of political content need to be taken on the future of fundamental rights protection. These decisions do not fall into the realm of judicial decision making. They depend directly on those who represent the European citizens.

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