Court of Justice of the European Union or European Court of Human Rights – Is There a ‘Supreme Court of Europe’?
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Birgit Daiber
Abstract
In Europe, judicial review is not only exercised by courts within the states. Additionally, there are two European Courts, the Court of Justice of the EU (CJEU) and the European Court of Human Rights (ECtHR). This chapter shows first their respective function with respect to judicial review. In a second step, it put its emphasis on the relationship between them and undertakes to ask whether – with respect to judicial review - one of them can be understood as the ‘Supreme Court of Europe’. It concludes that it is the European Court of Human Rights which can be described as such a ‘Supreme Court’.
1 Introduction
In Europe, judicial review is not only exercised by courts within the states. Additionally, there are two European Courts which are empowered to review decisions made by the European Union (EU) and/or the European States – the Court of Justice of the EU (CJEU) and the European Court of Human Rights (ECtHR).
They were established by partially different parties through different treaties the observance of the respective one they shall ensure. Thus, one could easily argue that they work parallelly.
Nevertheless, this contribution does not only want to deal with the judicial review they carry out side by side. With reference to the observation that the ‘lack of general understanding of the relationship between the EU and the … [Council of Europe] and the lack of awareness that the … [ECtHR] is not a part of the EU contributes to the spillover effect [on the ECtHR] of criticism paid to the EU’,[1] it intends to put its emphasis on the relationship between the two courts and undertakes to ask whether – with respect to judicial review – one of them can be understood as the ‘Supreme Court of Europe’.
To this end, this chapter shows first the function of both courts with respect to judicial review (Section 2.1 for the CJEU and Section 3.1 for the ECtHR). In a second step, it elaborates on their understanding of their role vis-à-vis non-national law and non-national courts, especially vis-à-vis each other (Section 2.2 for the CJEU and Section 3.2 for the ECtHR). Against this background, the chapter can draw its conclusions on the existence of a ‘Supreme Court of Europe’ by comparing the two courts with a view to judicial review (Section 4.1) and by verifying whether possible conflicts between them can be solved (Section 4.2) before finally confirming its result (Section 5).
2 Court of Justice of the European Union (CJEU)
2.1 The CJEU as ‘Supreme Court’
By starting with the Court of Justice of the European Union, the first question that arises is whether it can serve as ‘Supreme Court’. In the context of a book dealing with legal review, this means asking about its capacity to carry out such a review.
2.1.1 Review of EU Law
As a starting point, it should be noted that the CJEU has its legal basis in the Treaty on the European Union (TEU)[2] and was, therefore, established by the parties to that treaty, the EU Member States. Pursuant to that treaty the CJEU is vested with the task of ensuring that in the interpretation and application of EU law the law is observed.[3]
As a consequence – as no state can be bound by a treaty it has not ratified – the CJEU is only competent with respect to the 27 EU Member States.[4]
Additionally, when pursuing its task of ensuring that in the interpretation and application of EU law the law is observed, its jurisdiction is restricted to EU law: In the preliminary ruling procedure it can only deal with the validity of acts of the institutions, bodies, offices or agencies of the Union.[5] Equally, in the procedure for annulment, it can solely review the legality of these acts.[6] The same is true for the procedure for failure to act, which concerns only omissions imputed to these institutions, bodies, offices or agencies.[7]
Moreover, there is no jurisdiction of the Court with regard to the second pillar, that is with respect to matters of the common foreign and security policy.[8] This limitation should, however, not be overestimated as the modus operandi of the common foreign and security policy is still an intergovernmental, not a supranational one. Decisions taken within that area can, therefore, not directly affect the citizens. If such an effect shall be reached, especially when it comes to restrictive measures against natural or legal persons, an additional legal basis is needed which is to be found in the first pillar, in the part of the Treaty on the Functioning of the European Union (TFEU) dealing with the Union’s external action.[9] As a consequence, the treaties make sure that those directly concerned by the restrictive measures can have their legality reviewed by the Court.[10]
When exercising its power to review EU law, the CJEU also has the authority to declare it to be void.[11]
2.1.2 Review of the Law of the EU Member States
By contrast, the direct review, interpretation and application of the (still-existing[12]) law of the Member States is not under its responsibility.[13] This limitation should not be overestimated as well: In this regard it is of importance that in the jurisprudence of the Court, EU law takes precedence over national law. As the Court has consistently held, ‘the law stemming from the … [treaties], an independent source of law, could not, because of its special and original nature, be overridden by domestic legal provisions, however framed, without being deprived of its character as … [Union] law and without the legal basis of the … [Union] itself being called into question.’[14] This is even true with respect to the constitutional law of the Member States.[15]
As a consequence, the CJEU can review whether the law of the Member States – including their constitutions – are in line with EU law. It is empowered to do so in the framework of the so-called infringement procedure initiated by the European Commission[16] or another Member State[17] on the basis of the assumption that the Member State concerned has failed to fulfil an obligation under the Treaties.
It is true that there is no kind of ‘constitutional complaint’ allowing citizens to also directly approach the Court in order to have it decide about the compatibility of domestic law with EU law; but, at least, there is an indirect way for them: If their case is pending before a domestic court, this court can halt the proceedings and request a preliminary ruling from the CJEU;[18] the last instance court even has to do so.[19] While, in principle, the request cannot concern national law, but only (the interpretation of) EU law, the effect of a review of national law in the light of EU law can be reached by ruling on the question whether EU law ‘must be interpreted as [not] precluding the legislation of a … Member State’ with a specific content.[20]
It has, however, to be noted that – if the Court finds a violation of EU law by the law of the Member State – it is not authorised to declare the national law null and void. The judgment is only declaratory in nature[21] and the ‘incompatibility with … [Union] law … [does not have] the effect of rendering that rule of national law non-existent’.[22]
Yet, this does not mean that there is no imminent legal consequence: If the Court – in the infringement procedure – finds a violation of EU law, the State concerned shall be required to take the necessary measures to comply with the judgment[23] and there is the possibility that the Court imposes a lump sum or penalty payment.[24]
While it is true that there cannot be any such finding in the preliminary ruling procedure, the preeminence of EU law is still assured – as, pursuant to the jurisprudence of the Court, ‘it is not necessary for … [a national] court to request or await the prior setting aside of such provision by legislative or other constitutional means’.[25] To be more precise, it is not only ‘not necessary’, it would not even be permitted if national law required such an additional procedure.[26] Each national court itself can – and has to – set aside,[27] disapply,[28] the national provision not in line with EU law.
2.1.3 Scope of Application of the Treaties
However, the treaties themselves restrict their applicability in some provisions to the scope of their application[29] – which also must result in a restriction of the jurisprudence of the Court. Again, this should not be overestimated: It does not mean that EU law – and, as a consequence, the reviewing activity of the Court – does only apply as long as there is a competence conferred upon the EU by the Member States via the treaties. The CJEU has especially – and constantly – held that the effect of fundamental freedoms as substantive provisions is not limited to areas where the EU is competent to legislate. Also, when the Member States exercise their remaining powers, they ‘must comply with EU law and, in particular, with the provisions on’ these freedoms.[30] Equally, even in situations where EU law expressly limits itself to the scope of application of the treaties, this cannot be equated only with areas within the competence of the EU. As the Court has ruled with respect to the general prohibition on discrimination on grounds of nationality, ‘situations which fall within the scope ratione materiae of … [EU] law … [also] include those involving the exercise of the fundamental freedoms guaranteed by the Treaty’.[31] The review carried out by the Court in the light of EU law does, therefore, cover the full extent thereof and is not restricted to areas in which competences have been conferred upon the EU.
2.1.4 Interim Result
As an interim result, one can state that the CJEU can serve as a ‘Supreme Court’ in that it can review the legality of EU acts. Though its competence is limited with respect to the common foreign and security policy, it can deal with those (restrictive) measures which directly concern citizens.
The CJEU can additionally indirectly review the law of the Member States. This does not extend to questions of whether they comply with a higher-ranking source of domestic law – but it does include an – at least indirect – assessment of their compatibility with EU law. Though a negative outcome does not result in the domestic norms being declared null and void, there are legal consequences which shall ensure that (higher-ranking) EU law is observed.
It is true that EU law does not cover all areas, and all competences not conferred upon it remain with the Member States. It is also true that some provisions of the treaties only apply within the scope thereof. This does, however, not mean that the Court is restricted to areas in which competences have been conferred upon the EU. It can rather carry out its review in the light of the full extent of EU law.
Yet, all this only concerns the 27 EU Member States.
2.2 Acceptance of a ‘Superior’ Court
As Europe comprises more than the 27 EU Member States, this raises the question whether there is a ‘superior’ court the jurisprudence of which also extends to other European states. In the context of the leading question as to whether there is a ‘Supreme Court of Europe’ this would necessarily imply that the European Court of Justice accepts the jurisprudence of such a ‘superior’ court.
2.2.1 General Approach
Within an international legal order based on the principle of sovereign equality of states, such a ‘superior’ court would rather be an international court. As the CJEU – as has been stated above[32] – gives precedence to EU law over domestic law, even over national constitutional law, also from an EU law point of view, such a court cannot be a national one, but must be international.
2.2.1.1 The Relationship Between EU Law and International Law
Therefore, the acceptance of a ‘superior’ court by the CJEU depends on the relationship between EU law and international law.
2.2.1.1.1 The Principle
In its Kadi-judgment[33] the Court had the opportunity to develop that relationship. It took the view ‘that an international agreement cannot affect the allocation of powers fixed by the Treaties or, consequently, the autonomy of the … [EU] legal system’[34] and ‘that the obligations imposed by an international agreement cannot have the effect of prejudicing the constitutional principles of the’ EU treaties.[35]
Additionally, with respect to international treaties, which the EU is empowered to conclude,[36] the judgement recalls that they are binding upon the institutions of the Union and on its Member States.[37] It draws as a conclusion that these treaties only take primacy over EU law enacted by the institutions, that is EU secondary law.[38] By contrast, it does not accept their primacy over EU primary law,[39] which is not at the disposal of the institutions.[40] To support its view, the Court refers to the fact that it is empowered to give its opinion on the compatibility of such an international treaty with the EU treaties, ie, EU primary law, and that that compatibility is a precondition for the entry into force of all such international treaties.[41] As law is always reviewed (only) in the light of higher-ranking law, not in the light of law of the same or an inferior level, the possibility of such a review of international treaties envisaged by the EU institutions implies that EU primary law occupies a higher position than these international treaties.
2.2.1.1.2 Article 53 of the Charter of Fundamental Rights (CFR)
This result could, however, be limited by Article 53 of the Charter of Fundamental Rights which wants to prevent that the Charter, which forms part of EU primary law,[42] is interpreted as restricting or adversely affecting human rights and fundamental freedoms as recognised, in their respective fields of application, by Union law and international law and 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, and by the Member States’ constitutions. If EU law, therewith, itself allowed international law to override provisions of EU primary law, one would not have to conclude that within the EU legal order international law cannot have the highest position.
Yet, in its Melloni-judgment[43] the Court has insisted that ‘the primacy, unity and effectiveness of EU law are not … compromised’ by the application of that article.[44] One could wonder – as the judgment deals with human rights provisions contained in the constitution of a Member State[45] – whether this limitation only applies to national law, not to international human rights provisions. As Article 53 treats Member States’ constitutions and international law equally, a difference in treatment does not impose itself. Though the problem concerning the unity of EU law would not arise with respect to international agreements to which the Union or all the Member States are party, the impact on the effectiveness of EU law would remain the same whether it would result from Member States’ constitutions or from international law. Finally, as the Court, as we have just seen, also gives precedence to EU law over international law, at least to EU primary law, the primacy thereof as invoked by the judgment could not only be affected by the constitutional law of the Member States, but also by international law. It is, therefore, not very likely that the CJEU would give a restrictive interpretation of the judgment in question by not applying its reasoning to international agreements as well.[46]
2.2.1.1.3 Interim Result
As an interim result it can be stated that the general approach of the European Court of Justice concerning international law consists in not allowing it to take precedence over EU primary law and in reclaiming primacy for the latter.
2.2.1.2 The Possibility of Establishing Other International Courts
When it – more specifically – comes to international courts, the CJEU approves that they can be established by the EU, if the latter and third countries want to ensure compliance with the international treaties they have concluded.[47] In that regard the Court acknowledges that the decisions of such a court can be binding on the EU[48] and even on the CJEU itself.[49]
It should, however, be noted that the CJEU does not allow such a court to affect the autonomy of the EU legal order.[50] In the understanding of the Court this means that its own competences concerning all other provisions of EU law not contained in the respective international treaty must not be compromised. Additionally, the way of functioning of the CJEU must remain intact.[51]
2.2.2 The European Court of Human Rights in Particular
2.2.2.1 The Role of the European Convention on Human Rights in the EU Legal Order
The European Convention on Human Rights (ECHR), however plays a specific role in the EU legal order: When it comes to fundamental rights, which constitute general principles of EU law, the Convention is of particular relevance as the TEU uses it as a means of understanding in order to find theses general principle.[52] This does not imply that the Convention becomes a source of EU law. But with the general principles ranking at primary law level, the Convention can develop an influence which is not open to other international law, which is situated below the primary law level, as explained above.
This importance also extends to the EU Charter of Fundamental Rights equally placed at primary law level[53] as the Charter explicitly states that in so far as it contains rights which correspond to rights guaranteed by the ECHR, the meaning and scope of those rights shall be the same as those laid down by the Convention.[54]
2.2.2.2 Examples for the Influence of the Jurisprudence of the ECtHR[55]
How this is operating in practise can be demonstrated by the following examples:
When the CJEU had to determine in Roquette Frères whether the protection of the home extends to business premises as well, it had regard to the jurisprudence of the ECtHR and likewise answered the question in the affirmative.[56] This is even the more significant as in a previous judgment given before the ECtHR-judgment referred to in Roquette Frères was pronounced, the CJEU had still denied the protection of the home to business premises.[57] As this example shows the CJEU is even ready to modify its jurisprudence when a divergence with the jurisprudence of the ECtHR occurs.
This approach actually extends to the interpretation of EU law provisions other than human rights as demonstrated by the question of voting rights for the European Parliament in Gibraltar: After the ECtHR had decided that the exclusion of such rights constituted a breach of Protocol No 1 to the Convention,[58] the United Kingdom had extended these rights to the peninsula in order to comply with the judgment. Subsequently, the CJEU was confronted with a claim by Spain that the extension now violated EU law. However, the EU Court – expressly starting its reasoning by recalling ‘that it was to comply with the judgment of the European Court of Human Rights in Matthews v the United Kingdom that the United Kingdom adopted the legislation challenged by the Kingdom of Spain’[59] – found a way of interpreting EU primary law in a sense that ‘the definition of the persons entitled to vote and to stand as a candidate in elections to the European Parliament falls within the competence of each Member State … and that … [the provisions of the treaties on citizenship of the Union and on the European Parliament] do not preclude the Member States from granting that right to vote and to stand as a candidate to’ Gibraltar.[60] The CJEU explicitly stated that ‘the United Kingdom cannot be criticised for adopting the legislation necessary for the holding of’ elections demanded by the ECtHR.[61]
2.2.2.3 Accession of the EU to the ECtHR[62]
While, currently, the Convention itself is not a legal source within the EU legal order, there are efforts ongoing at EU level to make it an integral part thereof[63] by acceding to it. Initially, the CJEU opposed to that accession because of a lack of a legal basis for it in the treaties. Yet, this problem has been solved by the entry into force of the Treaty of Lisbon on 1 December 2009, which now explicitly states that the Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms.[64] After the first draft agreement providing for the accession was not approved by the CJEU,[65] a new round of negotiations has started in summer 2020.[66]
Yet, the Court’s opinion in that EU-Canada Comprehensive Economic and Trade Agreement (CETA)[67] could pose a further obstacle, as the Court therein established a further condition for the EU’s acceptance of the jurisprudence of an international court:[68] Additionally to the protection of its own competences and the way of its functioning as explained above,[69] it now also precludes ‘awards that might have the effect of preventing the EU institutions from operating in accordance with the EU constitutional framework’[70] which extends the protection to the legislature. If this resulted in the protection of the outcomes of the legislative process, ie, if secondary law could not be called into question by an international court, there could not be any court ‘superior’ to the CJEU.
As has already been explained elsewhere, such an understanding, however, need not be given to the Court’s opinion: Instead of protecting secondary law in total, the Court ‘only’ wants to make sure that ‘the level of protection of a public interest’ determined by EU legislature needs to be respected by an international court.[71], [72] In its view, this condition is met if the international agreement, in the light of which an international court reviews EU secondary law, contains the possibility for a justification of interferences with its provisions[73] and, therewith, allows the EU to ensure that public interests are protected.[74] As the European Convention on Human Rights allows such justifications, an accession to it is not precluded by the amended jurisprudence of the CJEU. This is, finally, also not excluded by the fact that the European Court of Human Rights applies a proportionality test when determining whether a measure is justified, since the CJEU in the same opinion allowed an international court to also verify the proportionality of the EU measure.[75],[76]
2.2.3 Interim Result
As an interim result one can state that the CJEU does not allow international law to take precedence over EU primary law. Nevertheless, it accepts that international courts are established by international agreements of the EU with third parties, which are empowered to deal with the provisions of the respective agreement in a way that is binding on the EU including the CJEU. The European Convention on Human Rights and the ECtHR can play a specific role in that regard as the Convention even radiates to the primary law level and the treaties explicitly foresee that the EU shall accede to the Convention and, therewith, submit to the ECtHR.
3 European Court of Human Rights[77]
This leads to the question of whether the European Court of Human Rights can be considered as ‘Supreme Court’ of Europe.
3.1 The ECtHR as ‘Supreme Court’
The ECtHR is set up to ensure the observance of the engagements undertaken by the 46 High Contracting Parties – including all 27 EU Member states[78] – in the Convention.[79],[80] Its jurisdiction shall extend to all matters concerning the interpretation and application of the ECHR.[81] To that end, its main task consists in dealing with alleged breaches or violations of the Convention claimed by the state parties[82] or individuals.[83],[84]
By doing so the Court can review all measures taken or omitted by the state parties. As the latter shall secure to everyone within their jurisdiction the rights and freedoms enounced in the Convention,[85] the scope of application of the Convention is determined comprehensively and does not make any ‘distinction as to the type of rule or measure concerned, and does not exclude any part of the member States’ “jurisdiction” from scrutiny under the Convention’.[86]
If the Court finds a violation of the Convention, it can give a judgment which is binding on the High Contracting Party concerned.[87] It is true that this judgment is only declaratory in nature[88] and that the Court is not empowered to declare the measure at stake null and void. Yet, the Convention envisages other means to make the state parties comply with the Court’s rulings, ie, ‘to put an end to the violation found by the Court and to redress so far as possible the effects’:[89] It involves the Committee of Ministers, an institution within the framework of the Council of Europe,[90] and vests it with the task of supervising the execution of the judgment.[91]
3.2 Review of EU Law[92]
However, the European Union, as has been explained above,[93] is, at the current state of play, no party to the Convention. The Court, therefore, refuses to accept applications directed against it.[94] If this were the last word, the European Court of Human Rights could, at least in the current situation, not be considered as a ‘Supreme Court’ of Europe.
Nonetheless, the Court is of the view that the state parties, while not precluded from transferring ‘competences to international organisations’, need to continue to secure the protection offered by the Convention and their ‘responsibility therefore continues even after such a transfer’.[95] This is especially true for EU primary law as these obligations are ‘freely entered into’ by the EU Member States.[96] As a consequence, the ECtHR can, thus, already (indirectly) review EU primary law.[97]
Yet, EU secondary law differs from EU primary law in that it is not enacted by the Member States and in that it does not depend on their unanimous consent. Nevertheless, the Court takes the view that applying EU secondary law by their authorities on their territory takes place within their jurisdiction and, hence, also holds them responsible for EU secondary law.[98] Only, if there is no link between a measure taken by an EU institution and a Member State – besides the initial establishment of the EU, its institutions, competences and proceedings –, the ECtHR excludes an (indirect) review of EU measures.[99]
As a result of this jurisprudence, the ECtHR can – already now – review measures of the state parties and – almost completely – of the EU. After an accession of the EU to the Convention[100] the remaining loophole would also be closed.
4 Conclusions
4.1 Comparison
When comparing the two courts, it can be stated that the European Court of Human Rights can review the measures of 46 European states in the light of the European Convention on Human Rights, while the EU Court can review the measures of (only) 27 of them in the light of EU law.
The ECtHR can review all measures within the jurisdiction of the state parties to the Convention, whereas limited restrictions apply to the CJEU in the field of the common foreign and security policy.[101] Additionally, the substantive provisions applied by the ECtHR normally[102] cover the full extent of the states’ jurisdiction, while some EU law provisions are confined to the scope of application thereof.
Both courts issue binding decisions. Although the ECtHR can never and the CJEU cannot in all cases declare the reviewed measures null and void in cases where they have found a violation, both systems dispose of means to ensure that their judgments are effectively complied with.
As a consequence, the ECtHR – mainly because of its extension to 19 further European states – offers itself as the ‘Supreme Court’ of Europe. This, however, can only be stated as it can – already before an accession of the EU to the European Convention – (indirectly) review EU law almost completely. An accession would even close the remaining loopholes.
4.2 Conflict Resolution
To verify this result, it will finally be asked whether there also is a solution of possible conflicts between the jurisprudence of the two courts.
4.2.1 Avoidance of Conflicts
At the outset, it should be noted that both courts try to avoid conflicts.[103] This not only true for the CJEU as we have seen above.[104] The ECtHR as well has found a way in stating ‘that the protection of fundamental rights by … [EU] law can be considered to be … “equivalent” … to that of the Convention system.’[105] As a consequence, the ECtHR – since Bosphorus – assumes that ‘the presumption arises that … [EU Member States do] not depart from the requirements of the Convention when … [implementing] legal obligations flowing from … [their EU] membership’.[106] One can wonder whether the ECtHR can keep this approach after an accession of the EU to the Convention or whether the EU then needed to be treated completely equally with other state parties.[107] Yet, in any case this modus operandi cannot preclude any conflict as the Bosphorus jurisprudence also foresees the possibility of rebutting the presumption ‘if, in the circumstances of a particular case, … the protection of Convention rights was manifestly deficient.’[108]
4.2.2 Means for Conflict Resolution
In case the Convention conflicts with secondary law, the CJEU has the possibility – as described above[109] – of taking into account the jurisprudence of the ECtHR at the primary law level and declare the conflicting secondary law null and void because of a breach of this higher-ranking law.
If primary law conflicts with the Convention, Article 351 (1) TFEU can solve the problem by stating that the rights and obligations arising from agreements concluded before 1 January 1958 or, for acceding States, before the date of their accession, between one or more Member States on the one hand, and one or more third countries on the other, shall not be affected by the provisions of the Treaties. With the Convention fulfilling this requirement[110] the conflicting EU primary law provision can stand back behind it.[111]
It is true that the CJEU interprets the article in a way that it ‘may in no circumstances permit any challenge to the principles that form part of the very foundations of the … [EU] legal order’.[112] Yet, as the court explicitly names ‘the protection of fundamental rights’ as one of them,[113] it is more than unlikely that the European Convention on Human Rights runs contrary to said principles and cannot benefit from Article 351 TFEU.
It is also true that para two of the provision obliges the Member State or States concerned to take all appropriate steps to eliminate the incompatibility. However, as all Member States would be concerned – as all of them have ratified the Convention –, even an amendment of the EU treaties seems possible to solve the problem.[114]
After an accession of the EU to the Convention the situation would not change considerably as the possibility of considering the Convention when interpreting EU primary law remains the same before and after the accession. What would be different is that the ECtHR could also rule on cases without any link to the Member States – besides creating the EU –,[115] resulting in further possibilities for conflicts. However, after the accession there would also be an external obligation of the EU to comply with the judgment.
5 Result
As a result, it can, therefore, be concluded that it is the European Court of Human Rights which can be described as a ‘Supreme Court of Europe’ when it comes to judicial review – at first sight astonishingly, if one thinks of the demeanour of the CJEU in insisting on the autonomy of the EU legal order with regard to both national and international law, on the one hand, and of the restraint shown by the ECtHR in its Bosphorus jurisprudence, on the other.
When thinking about the reasons leading to this result, one can first invoke the fact that the ECHR is older, allowing not only the ECtHR to rule that the state parties need to continue to comply with their obligations under the Convention even after becoming EU member states, which in the end enabled this court to indirectly review EU law. It also is the basis for applying Article 351 TFEU to the Convention and the resulting jurisprudence of the ECtHR.
Second, the initial lack of a human rights catalogue in EU law can be mentioned, which allowed the ECHR to become so important for the EU as a means of legal understanding of human rights.
Seen against the background that human rights protection shall be given against public authority in any form whatsoever, it is also the fact that the ECtHR specifically ensures the observance of human rights which results in its description as ‘supreme’. This is even more so as human rights do not only apply to certain areas, but are comprehensive in nature.
In the end, one can say that it is the particular power of the EU, its supranationality, it being empowered to legislate, which – as a corollary – creates the condition for it submitting to a ‘superior’ court – while the Convention system, by lacking legislative power, does not give reason to be reviewed itself.
© 2023 Walter de Gruyter GmbH, Berlin/Boston
Articles in the same Issue
- Frontmatter
- Research Articles
- The Democratic Self-Defence of Constitutional Courts
- When Should Courts Invalidate Constitutional Amendments?
- Weak Procedural Constitutionalism. The Judicial Process as Legitimacy of Judicial Review
- Precedent of the Inter-American Court of Human Rights: State Compliance and Judicial Performance in Brazil, Colombia, Argentina, Chile, and Bolivia
- Court of Justice of the European Union or European Court of Human Rights – Is There a ‘Supreme Court of Europe’?
- The Turkish Constitutional Court and Turkey’s Democratic Breakdown: Judicial Politics Under Pressure
- The Italian Constitutional Court on Women’s Rights: Patriarchal Remnants Versus Transformative Interpretations
- Three Paradigms of International Judicial Review
Articles in the same Issue
- Frontmatter
- Research Articles
- The Democratic Self-Defence of Constitutional Courts
- When Should Courts Invalidate Constitutional Amendments?
- Weak Procedural Constitutionalism. The Judicial Process as Legitimacy of Judicial Review
- Precedent of the Inter-American Court of Human Rights: State Compliance and Judicial Performance in Brazil, Colombia, Argentina, Chile, and Bolivia
- Court of Justice of the European Union or European Court of Human Rights – Is There a ‘Supreme Court of Europe’?
- The Turkish Constitutional Court and Turkey’s Democratic Breakdown: Judicial Politics Under Pressure
- The Italian Constitutional Court on Women’s Rights: Patriarchal Remnants Versus Transformative Interpretations
- Three Paradigms of International Judicial Review
