CYIL Vol. 4, 2013

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.