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Table of Contents: I. Introduction: “The disappointment that we felt”. – II. Connolly continued: complaints about acts of the EU institutions. – III. Back to real Bosphorus: complaints about EU Member States implementing EU law. – IV. No blind trust: complaints about cooperation between EU Member States. – IV.1. Avotiņš: Bosphorus in a horizontal setting, too. – IV.2. Avotiņš II: mutual recognition not to be applied automatically and mechanically. – IV.3. The clash that never happened. – V. Applying EU law as a fact of life. – VI. Seeking shelter: addressing the rule of law backsliding in Poland. – VII. Atlas shrugged.
Abstract: How did the European Court of Human Rights respond to Opinion 2/13? Or, more precisely, how did its “post-2/13” jurisprudence evolve in cases that raised issues of EU law? In answering this question, various aspects of the Strasbourg case law are analysed: cases where the Court dealt with complaints about acts of the EU institutions themselves; complaints about the conduct of EU Member States when implementing EU law or about situations where they cooperated with one another in the context of EU law; cases where an interpretation of EU law is required, and finally cases where an interesting substantive synergy between the ECtHR and the CJEU can be detected. One conclusion is that the Bosphorus doctrine, which was developed by the ECtHR in 2005, is still alive and kicking. It has been applied in a growing number of scenarios, and has been refined over the years. A second conclusion is that clashes between the two European Courts have been avoided. Thirdly, the Strasbourg Court has continued to support the EU and its legal order. Thus, it has recognised that the need to comply with obligations under EU law is “a legitimate general-interest objective of considerable weight” that may justify restrictions on, for instance, property rights; found that the refusal to execute a European Arrest Warrant (EAW) was insufficiently justified; qualified a criminal conviction in breach of EU law as a manifest error of law; and continued to support the judicial dialogue between domestic courts and the CJEU.
Keywords: Human Rights – ECHR – European Court of Human Rights – European Union – CJEU – Opinion 2/13
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European Papers, Vol. 9, 2024, No 2, pp. 647-671
ISSN 2499-8249 - doi: 10.15166/2499-8249/775
*Professor of European Law, Leiden Law School, r.a.lawson@law.leidenuniv.nl.
