CYIL vol. 12 (2021)

Jennie Edlund – Václav Stehlík

CYIL 12 (2021)

4.3 Engagement between ECtHR and CJEU In the field of human rights law, it is common for decision-making bodies, domestic, regional, or international, to draw inspiration from the law and practice of other legal orders. The ECtHR is no exception. Many decisions from the Court draw inspiration from relevant international law or comparative law. The Court’s position here is that the interpretation of the ECHR does not take place ‘in a vacuum’ and that the ECHR must be interpreted ‘according to other parts of international law of which it forms part’. 85 This does not exclude the influence of EU law in general on the ECHR. Research suggests that the Court cites the CJEU more frequently now than it did 15 years ago. 86 A creative engagement between ECtHR and CJEU may offer the best way to contest inconsistency under the right circumstances. In Jeunesse v. The Netherlands , 87 interveners explicitly argued that the ECHR protection should be interpreted to reach the same level as EU law. 88 The Court rejected this argument and maintained an ‘all things considered’ assessment. However, the Zambrano case 89 was cited and EU law was considered. The Court referred to the CJEU’s statements in Dereci 90 in which it was held that even if there were no EU rules obligating a Member State to admit a TCN, a right to residence could still be a fundamental right and this would be left to the ECtHR to decide should the case proceed to the Court. The ECtHR therefore continued where the CJEU left the questions of TCNs’ right to residence when associated to the right to family life under EU law. 91 As Cathryn Costello puts it “ Jeunesse v Netherlands illustrates that while EU and ECHR protections are distinct, mutual reinforcement and cross-fertilization can be productive and progressive, under the right conditions ”. 92 These dynamics of cross-fertilisation have not only led to a considerable enrichment of their respective means to protect human rights, but have also increased both Courts’ autonomy with regard to the EU and Council of Europe Member States. 93 It is interesting to note that in the Chavez-Vilchez case the Court states that the assessment of whether an EU citizen has a relationship of dependency with a TCN and whether they are in fact under risk of being deprived of their citizenship rights, as these are enshrined in Article 20 of the TFEU, has to be made in the light of the right to family life and the best interests of the child, according to Articles 7 and 24(2) and (3) of the Charter, and in line with the corresponding provisions of the ECHR and the respective case-law of the ECtHR. Therefore, it would be logical and beneficial for the protection of the right to family life if the ECtHR would determine similar cases under the ECHR in line with the corresponding CJEU case-law. 85 Letsas, George, Strasbourg’s Interpretative Ethic: Lessons for the International Lawyer, The European Journal of International Law , 2010, Vol. 21. 3, p. 521. 86 Lock, Tobias, The Influence of EU Law on Strasbourg Doctrines, European Law Review , Research Paper Series No 2017/03, p. 2. 87 Jeunesse v. The Netherlands , supra note 53. 88 Ibid , para 99. 89 Case C-34/09 Gerardo Ruiz Zambrano v. Office national de l’empoli, 2011, ECR I-1177. In Zambrano the CJEU has created a new rout to protect residence rights of EU citizens and their TCNs’ families. 90 Case C-256/11 Dereci and Others v. Bundesministerium für Inneres. 91 ECtHR Jeunesse v. The Netherlands , Judgement of 4 December 2012, Application No. 12738/10, paras 111–112. 92 Costello, Cathryn, The Human Rights of Migrants and Refugees in European Law , Oxford Studies in European Law, Oxford University Press, 2016, p. 169. 93 See Scheek, Laurent, The relationship between the European Courts and Integration through Human Rights 65, Heidelberg Journal of International Law , 2005, p. 8.

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