Judicial dialogue between the CJEU and ECtHR after accession

This paper aims to provide an answer to the following question: how will the EU’s accession to the ECHR shape the judicial dialogue between the Court of Justice of the EU and the European Court of Human Rights? The starting point of the paper is the current informal judicial dialogue between the two courts, which has been very well covered in the literature. There is a long tradition of the CJEU following the ECtHR’s lead; and there is growing evidence of the ECtHR taking cues from the CJEU. This judicial dialogue – which occurs in the absence of any formal relations between the two courts – has had the following effects: first, the development of the EU’s own fundamental rights protections that tend to use the ECtHR’s case law as a baseline. Since the advent of the EU Charter of Fundamental Rights this trend is in overall decline, but can still be witnessed; second, the ECtHR’s restraint in exercising its own jurisdiction in cases concerning EU law (through the Bosphorus presumption) while keeping the door open to engage in a full review through the ‘manifest deficit’ test. There is evidence that the prospect of ECtHR review (and findings of violations) has prompted the CJEU to increase the human rights protection at EU level; and third, there is evidence of EU law standards as formulated by the CJEU influencing the ECtHR. The question is how EU accession to the ECHR, which is currently being negotiated (again), might affect this dialogue. It is likely that accession would result in a fundamental re-shaping of the EU-ECHR relationship. First, it would introduce a formal mechanism for interaction (the prior involvement of the CJEU) in certain cases; second, it might reduce the ECtHR’s jurisdiction in cases concerning mutual trust, which are particularly human rights sensitive and which have been a hotspot for judicial dialogue between the two courts; third, accession would call into question the basic premise behind the Bosphorus presumption and might embolden the ECtHR to find against the EU (and indirectly the CJEU) more often, which could result in a more hierarchical relationship between the two courts. The paper will try to evaluate the potential effects of each of these changes on the types of dialogue identified above.