Convention Control Over the Application of Union Law by National Judges: The Case for a Wholistic Approach to Fundamental Rights

Table of Contents: I. Convention control over the application of Union law by domestic courts. – I.1 The principle. – I.2. Applications. – II. The case for a wholistic approach to fundamental rights: state of the play. – II.1. The European Court of Human Rights. – II.2. The Court of Justice of the European Union. – III. Conclusion.

Abstract: Legal acts performed by EU Member States applying Union law come within the scope of the Convention and can give rise to adjudication by the ECtHR. A long series of judgments illustrate the ECtHR’s approach regarding the application of Union law by the courts of EU Member States. The Convention and Union law are not two autonomous systems separated by a watertight fence. Both European Courts should therefore adopt a wholistic approach in this area, because only a wholistic view takes full account of the legal reality which is one of interaction and intertwining. The ECtHR makes abundant use of EU law sources, thereby always explicitly referring to them. Three different categories of cases can be identified in how the CJEU goes about the Convention in its case-law.

Keywords: ECHR – EU-Charter – legal clarity – duality of norms – methodology – wholistic approach.

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European Papers, Vol. 8, 2023, No 1, pp. 331-347
ISSN 2499-8249 - doi: 10.15166/2499-8249/655

* Deputy Grand Chamber Registrar at the European Court of Human Rights and Professor at the Universities of Louvain (Belgium) and Speyer (Germany), johan.callewaert@echr.coe.int.