A Strasbourg story of swords and shields: National courts’ motives to request an advisory opinion from the ECtHR under Protocol 16

Abstract: Since 1 August 2018, national courts in European states that ratified Protocol 16 (P16) have the possibility to request an advisory opinion from the European Court of Human Rights. So far, only four requests have been made. This warrants the question what motivates courts (not) to make such a request. This paper tries to come up with an initial answer on the basis of literature on the European Convention on Human Rights (ECHR) and empirical and theoretical studies on the EU preliminary ruling procedure. It also conducts a case study on a most likely case for the use of P16: the Netherlands. The Netherlands is one of the biggest jurisdictions that has ratified P16 so far and the ECHR plays an important role in the Dutch legal order. This article concludes that the potential eagerness of national courts to use P16 is limited. The three identified different motives (legal, pragmatic and politico-strategic) all point in the direction of timid courts foregoing a request on the basis of P16. We therefore call on Strasbourg to sharpen the sword offered by P16 and discourage the inclination of national courts to arm themselves with sizeable shields to resist Strasbourg’s involvement.