Judicial dialogue, new technologies and digitalization: CJEU engagement with ECtHR case law

Judicial dialogue between the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR) has been the object of analysis both in a pre- and post-Opinion 2/13 context. Post-Opinion 2/13, CJEU references to ECtHR case law have not been routine. Indeed, several judgments reflect the CJEU’s inclination to autonomously interpret the Charter of Fundamental Rights of the EU (CFR). However, there have also been CJEU rulings that have relied upon ECtHR case law. The ‘homogeneity clause’ of Article 52(3) CFR has arguably played an important role in this regard, enabling CJEU citations of ECtHR case law to persist. The aim of this paper is to study CJEU engagement with the jurisprudence of the ECtHR in cases concerning new technologies and digitalization. The analysis is based on the premise that significant differences might exist concerning the nature and degree of European courts’ interaction with each other’s case law, depending on the type of cases before them. With respect to cases that address technological innovation, in particular, European courts may have good reasons to look for advice and insight into each other's rulings in order to cope with complex legal questions in the new environment whilst taking steps to ensure adjudicative coherence. The analysis will focus on digital media, digital intermediaries and data protection case law. It will identify the cases where the CJEU engages with the ECtHR jurisprudence and it will examine the nature, extent and key characteristics of such engagement, with the understanding that case law references are not all the same. References to the jurisprudence of other courts can be used to acknowledge the rulings of peers; to corroborate or strengthen the reasoning of the deciding judge; to exemplify similarities (or differences) in judicial reasoning; and sometimes even to disapprove another verdict. The paper will seek to deepen understanding of the effects of judicial dialogue and of the use of ECtHR case law on the CJEU’s reasoning and the outcome of adjudication.