Il judicial dialogue tra la Corte di giustizia dell’Unione europea e la Corte europea dei diritti dell’uomo

Abstract

The research aims to provide a framework of the different stages of development of the relations between the Court of Justice of the European Union and the European Court of Human Rights, which appear, at present, still subject to further definition. The study of case law focusing on convergences and divergences between the two European Courts is the analysis tool more appropriate to observe this interaction. Though the analysis of the most important case law of the two supreme European Courts gives account of a well-established dialogue between the Court of Justice of the European Union and the European Court of Human Rights on the protection of fundamental rights, is not completely averted the risk of different interpretations of the same rights: the different approach regarding ne bis in idem principle represents a clear demonstration of this contrast. In this context, the need for a cooperative relationship between the two courts emerges clearly, for the first time expressis verbis, from Declaration n. 2 on Article 6, par. 2 TEU, which provides that “The Conference agrees that the Union's accession to the European Convention for the Protection of Human Rights and Fundamental Freedoms should be arranged in such a way as to preserve the specific features of Union law. In this connection, the Conference notes the existence of a regular dialogue between the Court of Justice of the European Union and the European Court of Human Rights; such dialogue could be reinforced when the Union accedes to that Convention”. Therefore, it is inevitable the “institutionalization” of the judicial dialogue, to resolve permanently problems arising from the continuous and persistent convergences and divergences between the two European Courts. This institutionalization will introduce an external review of the European Court of Human Rights on the Court of Justice of the European Union as a “bastion” for the protection of fundamental rights in the European Union system. In this perspective, the solution of the problems of coordination between the case law of the two Courts is ensured by the future (or futuristic) agreement on the accession of the European Union to the European Convention on Human Rights. The debate has become more than ever actual thanks to the latest developments that have affected the process of the accession of the EU to the ECHR in the aftermath of the Opinion 2/13 of the Court of Justice (Full Court) of 18 December 2014. It has temporarily blocked the process of EU accession to the ECHR and, therefore, the “formalization” of the dialogue between the courts of Luxembourg and Strasbourg and has clearly shown that there are still some obstacles to the “institutionalization” of relationships between the two courts. [edited by Author]