Eleanor Sharpston on the EU‘s accession to the ECHR

Eleanor Sharpston, advocate general at the Court of Justice of the European Union, was in Prague, Czech Republic, on Friday 23 April 2010 to give a lecture at Charles University’s Faculty of Law. With a smile and the legendary English sense of humour on her lips, she spoke of an extremely serious and up-to-date issue: the future accession of the European Union to the European Convention on Human Rights.(1)

From the lecture
The biggest issue related to the accession of the EU to the ECHR seems to be its inevitable consequence: the Court of Justice in Luxembourg – mind you! – will come under the direct control of the Court in Strasbourg.
Eleanor Sharpston refuses to see things that way. To her, the question should not be: who is the top court? The question should be: does every court do its job properly? That, she said, is the principal meaning of the so lange doctrine formulated by some Member States‘ constitutional courts (German Bundesverfassungsgericht in particular) and expressed (in a slightly different way in Bosphorus) also by the European Court of Human Rights in Strasbourg(2). As long as (so lange) these three instances (Luxembourg, supreme courts in Member States and Strasbourg) do their job, i.e. make sure that individuals are duly protected, that there fundemantal rights are safeguarded, that justice is done, that triangle will be in perfect balance. That is what the so lange doctrine should be considered to be. It should not be considered a threat, it should be considered a challenge. A guarantee that all these courts will do their best in making sure that individuals are protected.

Reaction
Eleanor Sharpston’s words are inspiring. Future will show, however. The so lange doctrine has been something that is there up in the air, does exist, but is not likely to ever be used. As long as this as long as doctrine (sic!) is not used, everything will be just fine. But is the activation of the so lange doctrine really nothing but pure theory? There cases with the potential and no court likes to be said that its case-law is bad. A friend of mine, a judge, told me once that, in his beginnigs, the greatest difficulty was to cope with the fact that a higher instace can actually strike down his judgment. This was a local court judge. Now, imagine the reaction of a judge sitting in a constitutional court of a Member State.
And imagine the reaction of a judge in Luxembourg.
Can that delicate situation be avoided? Is there anything that could be done to prevent the Sword of Damocles from falling? Narrow, informal contacts between the two court could help. It is true, however, that informal discussions are one thing, but having to decide a particular case is a completely different thing. And then, judges in both Luxembourg and Strasbourg already have a lot to do, don’t they?
Thus, it could be that the sole solution is the one proposed by Eleanor Sharpston: that each of the courts simply does everything to protect fundamental rights of individuals properly. And let us hope that the war will never be declared.

(1) Article 6.2 of the Treaty on the European Union, as amended by the Lisbon Treaty, leaves no room for doubt: The Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms. That same provision also adds: Such accession shall not affect the Union’s competences as defined in the Treaties. The Protocol no 8 adds some further elements.
(2) Judgment in BOSPHORUS HAVA YOLLARI TURİZM VE TİCARET ANONİM ŞİRKETİ v. IRELAND (application no. 45036/98) was delivered on 30 June 2005.