133 / 350
MUTUAL RESPECT AND RESIDUAL TENSIONS BETWEEN THE SYSTEMS OF PROTECTION…
apply the ECtHR’s case-law.
56
However, such a respect was “voluntary” because no
provision of the Treaties obliged the Court of Justice to comply with the requirements
following from this case-law.
57
Conversely, Article 52(3) of the Charter imposes such
an obligation, as its wording is in reality an euphemism for an obligation to interpret
the Charter in conformity with the case-law of the ECtHR given that the latter is an
authority competent for determining the “meaning and scope of fundamental rights
guaranteed by the [ECHR]” in the sense of this provision.
58
In the logic of Article 52(3) the ECJ continued to apply the ECtHR’s case-
law. In particular, it recognised explicitly in
DEB
that, in general, provisions of the
Charter had to be interpreted in the light of this case-law.
59
Similarly, it applied and
referred to the latter in important recent cases such as
N.S.
or
Volker und Markus
Schecke
. Moreover, a joint communication from the presidents of the ECtHR, Jean-
Paul Costa, and of the Court of Justice, Vassilios Skouris, stressed the need to ensure
“the greatest coherence” between the ECHR and the Charter insofar as the latter
contains rights which correspond to those guaranteed by the ECHR.
60
In this respect, however, it cannot be stated that the attitude of the Court of Justice
has recently changed and that the ECtHR’s case-law has acquired a more privileged
status than before. First of all, the ECJ referred to it in a comparable number of rulings.
After the entry into force of the Treaty of Lisbon, it mentioned this case-law in the
reasoning of 7 judgments in 2010,
61
5 judgments in 2011,
62
3 judgements in 2012
63
and 6 judgments in the first half of 2013.
64
In comparison, it referred to this case-law in
the reasoning of 2 judgments in 2001,
65
5 judgments in 2003,
66
4 judgments in 2005
67
and 5 judgments in 2007.
68
It follows that only a very slight increase of references to
the ECtHR’s case-law can be observed for the moment.
56
See Case C-13/94
P v. S and Cornwall County Council
[1996] ECR I-2143, paragraph 16.
57
The only relevant provision was the former Article 6(2) TEU, which was, however, too vague concerning
the binding force of the case-law of the ECtHR.
58
See also K. Lenaerts and E. de Smijter, “The Charter and the Role of the European Courts”,
8 Maastricht Journal of European Law (2001) 90, at 99 and C. Busse, “Das Projekt der europäischen
Grundrechtscharta vor dem Hintergrund der EMRK“, Thüringisches Verwaltungsblatt (2001), 73, at
79; Conversely, Lock argues that the ECJ is not bound by the case law of the ECtHR when interpreting
rights that correspond to those of the ECHR (see T. Lock “The ECJ and the ECtHR: The Future
Relationship between the Two European Courts”, The Law and Practice of International Courts and
Tribunals 8 (2009) 375, at 383-387.
59
Paragraph 37.
60
Communication available at
http://curia.europa.eu/jcms/upload/docs/application/pdf/2011-02/cedh_cjue_english.pdf.
61
Cases C-518/07, C-413/08 P, C-485/08 P, C-92/09, C-208/09, C-279/09 and C-400/10 PPU.
62
Cases C-548/09 P, C-411/10, C-434/10, C-61/11 PPU and C-256/11.
63
Cases C-489/10, C-199/11 and C-249/11.
64
Cases C-584/10 P, C-300/11, C-399/11, C-501/11 P, C-334/12 RX-II and C-168/13 PPU.
65
Cases C-270/99 P and C-138/01.
66
Cases C-465/00, C-109/01, C-224/01, C-245/01 and C-276/01.
67
Cases C-189/02 P, C-376/02, C-105/03 and C-347/03.
68
Cases C-411/04 P, C-229/05 P, C-303/05, C-305/05 and C-438/05.