LEGAL OR PROCEDURAL “GAME” BETWEEN THE COURT OF JUSTICE OF THE EU (CJEU) AND THE EUROPEAN COURT OF HUMAN RIGHTS (ECTHR) IN THE PROTECTION OF FUNDAMENTAL RIGHTS?

In its practice so far, the Court of Justice of the EU (CJEU) has two key sources of inspiration regarding the protection of fundamental rights: the first source is the constitutional traditions of the EU Member States, while the second one is the international agreements that protect human rights and freedoms, signed by the Member States of the Union. Although it is a question of two intertwined and interdependent sources, the CJEU still very often considers them separately on a case-by-case basis. In the legal argumentation, it is a fact that the EU Member States remain obliged to respect not only EU law, but also the UN human rights conventions, to take care of the application of the law of the Council of Europe, and in certain cases, the international customary law. There are strong arguments in support of this position in EU law as well. Therefore, the position of the EU is represented as a key factor in the respect of human rights and freedoms that directly derive from the UN Charter and from other UN conventions for the protection of human rights. In order to protect human rights from parallel multifacetedness that can lead to negative implications, the EU institutions, predominantly through the CJEU, cooperate with the competent institutions of the Council of Europe and the UN and, on a formal or informal level, accept the already established standards in the promotion and protection of human rights. In the paper, the emphasis of the analysis will be on explaining the phenomenology of this legal and/or procedural game that takes place at the institutional level with special reference to the principle of primacy and legitimacy. The basic hypothesis of the paper is that Europe has complex system of fundamental rights protection. It is a truly “crowded house”. Citizens and legal practitioners are confronted with different binding texts to be applied sometimes simultaneously, using different standards, structures, terminology and qualifications. These are domestic law, including in most cases the national constitution’s fundamental rights, the European Convention on Human Rights and its protocols as well as EU law, in particular the EU Charter of Fundamental Rights. On the other hand, the EU Charter for fundamental rights and the general principles of Union law are the primary fundamental rights instruments when assessing EU law and national measures within the scope of application of EU law. In practice, there is an active dialogue and a high degree of consensus among European and highest national constitutional and supreme courts on protection of human rights.