HUMAN RIGHTS IN THE EUROPEAN CONSTITUTIONAL ORDER

EU law, or will it remain the ECtHR, the court traditionally tasked with providing binding interpretations of the ECHR? Should the CJEU assume the role of binding interpreter, a mechanism for resolving any future disputes between the CJEU and the ECtHR will be necessary. Conversely, if the ECtHR continues as the sole interpreter, it may require amending the EU’s founding treaties, given that EU law would then be subject to interpretation by a judicial body other than the CJEU. 30 One might ask: Wouldn’t it be simpler to allow both courts to interpret the ECHR in a binding way? The ECtHR would interpret the ECHR as the body established to resolve disputes arising from the Convention (and thus as the prima facie authority for interpreting the Convention as a legal document), while the CJEU would interpret the ECHR in its role as the body empowered to provide binding interpretations of EU law. Personally, I believe that such a procedure is practically unfeasible, as it would lead to chaos in terms of legal certainty. For case law to be convincing and inspire confidence in the law, it must be consistent and well-reasoned. It is untenable to have two equivalent interpretations of the same legal document without a mechanism to resolve conflicts of opinion. Another significant issue is the autonomy of EU law. It is not acceptable for a non-EU body to provide a binding interpretation of EU law. However, as I will discuss later, I do not believe this should be a major concern. Regardless of the path we choose, we will always face the challenge of finding a solution for a binding interpretation that harmoniously links the two systems. In my view, it seems most reasonable for the ECtHR to remain the sole authority on interpreting the ECHR. The ECtHR was specifically established for this purpose and has a long history of legitimate interpretation of the Convention. For instance, Protocol No. 16 allows national courts to seek advisory opinions from the ECtHR, further reinforcing its role as the ultimate interpreter. When states signed the Convention, they did so with the clear expectation that the ECtHR would be the authoritative body for interpretation. If another court were to assume this role, it could violate the legitimate expectations of these signatory states, many of which are not even EU members, such as Ukraine. Therefore, I believe maintaining the ECtHR’s role is essential to ensure the Convention is applied consistently and effectively across different countries. I see no issue with the ECtHR maintaining its primary role in interpreting the Convention. Although EU law is quite specific, a useful comparison can be made with a typical signatory state to the Convention. When a state accedes to the Convention, it commits to integrating it into its legal system. However, this commitment does not grant national courts the authority to provide binding interpretations. Allowing national courts such power would undermine the fundamental purpose of the

30 The CJEU also expressed these concerns in its Opinion No. 2/13 of 2014 (e.g. para. 184-187).

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