The Use of ECtHR Case Law by the CJEU: Instrumentalisation or Quest for Autonomy and Legitimacy?

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Table of Contents: I. Introduction. – II. Post-Charter situation at first glance. – III. Post-Charter situation: second thoughts. – III.1. Autonomy (first). – III.2. Legitimacy (when needed). – IV. Conclusion: what about the standard of protection?

Abstract: Whilst the ECtHR’s case-law has occupied a central position in the CJEU’s fundamental rights case-law since the latter’s beginning, the entry into force of the EU Charter of Fundamental Rights seems to have opened a new and more chaotic period. Relying on this new fundamental rights instrument, the CJEU tends to cite ECtHR case-law in a far less systematic way, raising questions about the function of this case-law in the CJEU’s new and ever-growing fundamental rights jurisprudential corpus. But, beyond this apparent inconsistency, nothing has really changed: ECtHR case-law still helps the CJEU to legitimate its own jurisprudence, being summoned whenever the EU Court needs it, and the ECHR human rights standard is still the CJEU’s first (but not only) compass.

Keywords: ECHR – EU Charter – legitimacy – EU law autonomy – CJEU – instrumentalisation.

European Papers, Vol. 8, 2023, No 1, pp. 323-330
2499-8249 - doi: 10.15166/2499-8249/654

* Professor, Université Grenoble Alpes,


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